MEMORANDUM OPINION GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DETERMINING PLAINTIFF'S DEFAMATION CLAIM TO BE DISCHARGEABLE

K. Rodney May, United States Bankruptcy Judge

INTRODUCTION

"And when they went and interviewed that girl down in Kissimmee, they never showed me a picture of her."1

By itself, this remark by Casey Anthony ("Debtor"), made to her parents nine days after being arrested in connection with the disappearance of her two-year old daughter, would appear to harm no one. But, Zenadia Gonzalez ("Plaintiff") alleges in this adversary proceeding that she was the only person identifiable as the "girl down in Kissimmee," and that, when considered with surrounding circumstances, Debtor's statement implicated Plaintiff as being involved in the child's disappearance. Plaintiff's defamation lawsuit was pending in Orange County Circuit Court ("State Court Case") when Debtor filed her Chapter 7 petition.2

It would be pointless, however, for the Plaintiff to prosecute the defamation claim if it is dischargeable in bankruptcy. Accordingly, Plaintiff filed this adversary proceeding to obtain a determination that her claim arises from a willful and malicious injury and is therefore excepted from discharge, by operation of 11 U.S.C. § 523(a)(6).3

Debtor has moved for summary judgment, asking the Court to find that the above quoted statement (the "Statement") was not made with the intent or purpose to injure Plaintiff, as is required by § 523(a)(6). Debtor further asks the Court to find that subsequent statements to the media by Debtor's mother, Cindy Anthony, are neither attributable to Debtor for purposes of non-dischargeability, nor made with the intent or purpose to injure Plaintiff.

After reviewing the record4 and carefully considering arguments of counsel, the Court concludes that the content and context of the Statement do not support Plaintiff's allegation that the Statement was uttered with the intent or purpose to injure her. The Statement was made only to the Debtor's parents. It was not a false statement about Plaintiff's person, character or conduct. The Statement was not targeted at Plaintiff. It was a statement, either false or mistaken, about the Orange County Sheriff's Office investigators failing to pursue Debtor's story about a babysitter with whom Debtor claimed to have last seen her daughter. During the same conversation with her parents, Debtor gave a description of the babysitter, as a person having a hyphenated last name ("Fernandez-Gonzalez"), and physical features that did not match those of Plaintiff, whom she did not know. For these same reasons, the Statement is not malicious as to Plaintiff. The later public comments by Debtor's mother do not show an intent to injure Plaintiff and are not linked to any directive by Debtor to target or harm Plaintiff. Thus, there is no legal or factual basis to attribute the mother's statements to Debtor. Therefore, the Debtor is entitled to a discharge from Plaintiff's defamation claim.

FACTUAL BACKGROUND

In June 2008, Debtor's two-year old daughter, Caylee, went missing. Nearly six months later, the child's body was found and Debtor was charged with her murder. On July 5, 2011, Debtor was acquitted of the murder charge, but was convicted of, and served time in jail for, lying to law enforcement officials. One of the lies she told them was that she had last seen her daughter on June 9, 2008, at the Sawgrass Apartments in Orlando, Florida,5 when she had left her daughter with a babysitter named "Zenaida Fernandez-Gonzalez."6

Debtor did not report her daughter's disappearance for more than a month. It was Debtor's mother, Cindy Anthony, who alerted authorities to Caylee's disappearance during a 911 call on July 15, 2008. Debtor participated in a second 911 call later that day, in which she said that a babysitter, "Zenaida Fernandez-Gonzalez," had her daughter.7

On July 16, 2008, Orange County Sheriff's Office investigators questioned Debtor at her parents' home.8 The investigators again heard the "babysitter" story. Debtor provided the hyphenated name and a physical description of the babysitter.

Investigators determined that no person named "Zenaida Fernandez-Gonzalez" lived at the Sawgrass Apartments in June 2008.9 But, on their own initiative, investigators searched the Sawgrass Apartments records and discovered that a person with the similar name of "Zenaida Gonzalez" (Plaintiff) had visited the complex several months earlier, on April 17, 2008. As a prospective tenant, she had filled out a guest card, but had never lived there.10

Investigators interviewed Plaintiff a single time, in Kissimmee, on July 16, 2008.11 In a sworn statement, Plaintiff denied knowing Debtor or Caylee. Plaintiff also denied having worked for Debtor as a babysitter.12 It is undisputed that Debtor and Plaintiff did not know each other.

Later that day, investigators accompanied Debtor to Universal Studios in Orlando, where she reversed her earlier claim that she was employed there. Debtor continued to assert, however, that she had last seen Caylee with the babysitter, "Zenaida Fernandez-Gonzalez."13 Investigators then presented Debtor with photographs of about 50 women from a database and a photo of Plaintiff taken by investigators earlier that day.14 Debtor did not identify Plaintiff as the babysitter.15

Investigators viewed surveillance video from the Sawgrass Apartments and concluded that Debtor had not been there on June 9, 2008.16 Later on July 16, 2008, Debtor was arrested and charged with child neglect, making a false official statement, and obstructing a criminal investigation.17

Nine days later, on July 25, 2008, Debtor's parents visited her at the Orange County Jail.18 The visit lasted about an hour and the conversation was recorded. About 51 minutes into the recording, Debtor's mother began to question Debtor about the babysitter. Debtor gave her mother a description of the babysitter's height, weight, skin color, and eye color. Her mother posed this rhetorical question: "I would think that if anybody around here knew her they would have come forward by now." Debtor agreed.

Then, the following exchange took place:

Debtor also complained to her parents that the investigators were not searching for the babysitter by her full, hyphenated name "Fernandez-Gonzalez."

Thereafter, Debtor's mother spoke to the media. In a deposition in the State Court Case in 2009, Plaintiff focused on one such public interview, conducted on July 28, 2008, where Cindy Anthony stated:

Plaintiff contends that this statement was a republication of the Statement and accomplished Debtor's purpose, through her mother acting as an agent, of implicating Plaintiff as a kidnapper or murderer.21

Later, in September, 2008, Plaintiff sued the Debtor for defamation in the Orange County Circuit Court.22 Eventually, both parties moved for summary judgment.23 On April 12, 2012, Circuit Judge Munyon concluded:

The State Court Case remains pending; but, because of the Debtor's bankruptcy filing, it is stayed by operation of Bankruptcy Code § 362(a).

In this adversary proceeding, Plaintiff seeks a determination, under § 523(a)(6), that her unliquidated defamation claim be excepted from discharge because the Statement was willful and malicious.25 Plaintiff contends that "[w]ith a statement such as this, any reasonable person would know that a person's character and reputation would be harmed by being branded as a kidnapper."26 Among other things, Plaintiff argues that: (1) the parties are bound by the ruling in the State Court Case that the defamatory nature of the remark is to be decided by a jury; and (2) a "willful and malicious" injury, for purposes of the § 523(a)(6) exception to discharge, can result from the act of an "agent," in this case, Debtor's mother.

Debtor's motion for summary judgment focuses on the many physical differences between Plaintiff and Debtor's description of the babysitter.27 Debtor argues that Plaintiff cannot establish the elements of defamation because none of the statements about the babysitter were ever directed at Plaintiff; they could only have been about some other person (real or fictional) bearing no resemblance to Plaintiff.28 Debtor argues that Plaintiff cannot prove specific intent to injure the Plaintiff.29 And, she contends that § 523(a)(6) cannot apply to acts by third parties.

ANALYSIS

I. The Issue of Dischargeability is a Core Proceeding

In this proceeding, Plaintiff's claim has been characterized generally as one for "defamation," which would require proof of both a false statement about the claimant and actual damages arising from the statement.30 The claim might also be tried as defamation by implication, which would require proof of the juxtaposition of a statement, that may even be true, to a series of facts that imply a defamatory connection between them.31 In either case, the standard of liability would likely be one of negligence.32 The ruling was made in the State Court Case that a jury must determine whether the Statement is defamatory under Florida law.

The issue of whether a creditor's claim is excepted from the Chapter 7 discharge, however, arises from the Bankruptcy Code. The determination of any exception to discharge is a core proceeding in which this Court is the trier of fact.33 Even where a judgment of defamation has been entered previously in another court, the claim will be excepted from discharge under § 523(a)(6) only if the bankruptcy court determines that the debtor acted willfully and maliciously.34 Thus, it is within the province of this Court to determine, on the record before it, whether Debtor intended to injure Plaintiff, or had reason to appreciate the substantial likelihood that Plaintiff would be injured, when she uttered the Statement.

II. Summary Judgment Standard.

Federal Rule of Civil Procedure 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."35 Summary judgment is warranted when "there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial."36

Plaintiff did not offer any evidence to rebut Debtor's affidavit. If there was any evidence weighing in her favor, she would have made it known to the Court in a motion for summary judgment, or in response to Debtor's motion for summary judgment.

In addition to the authority to grant summary judgment sua sponte, the Court is also able to draw inferences, make findings of fact, and make determinations of witness creditability.37 Furthermore, "[i]t is permissible for a trial court in a non-jury case to grant summary judgment if witness creditability is not at issue and trial would not enhance the court's ability to draw inferences and conclusions."38

The Court is satisfied that the record is sufficient to decide this matter without a trial. The Court has reviewed and considered the Statement and the entire conversation within which it occurred and the affidavits and deposition testimony of Debtor and her mother. A trial would not add anything meaningful to aid the Court in deciding the dischargeability issue.

III. Exception to Discharge for a Willful and Malicious Injury

Plaintiff must show, by a preponderance of evidence, that her claim arose from a "willful and malicious injury by the debtor. . . ."39 Both requirements must be proven.40

In considering the requirement of "willfulness," the Supreme Court, in Kawaauhau v. Geiger,41 rejected the argument that reckless or negligent conduct, as alleged in that case for a medical malpractice claim, was sufficient for the § 523(a)(6) exception to discharge:

Thus, the injury itself must be intentional or deliberate; injuries that arise from accident, inadvertence, negligence or recklessness are not considered "willful" for the § 523(a)(6) exception to discharge.43 The Eleventh Circuit has added the refinement that an intended act may be considered "willful," but only if it is substantially certain to cause injury.44

As to the second requirement of § 523(a)(6), an injury is "malicious" when it is caused by conduct that is "wrongful and without just cause or excessive even in the absence of personal hatred, spite or ill-will."45 A showing of specific intent to harm another is not necessary and "[m]alice can be implied."46

A. Debtor's Statement To Her Parents Does Not Manifest an Intent to Injure Plaintiff.

It has been suggested that, in cases like this where there is no physical injury, courts should apply a "subjective" standard requiring proof of what the debtor actually knew, as distinguished from an objective standard, requiring proof only that the debtor's act was substantially certain to cause injury.47 Where the harm is not a physical injury, "a purely objective substantial certainty analysis would bring the court dangerously close to the recklessness standard ... [and] using a subjective standard for substantial certainty avoids this risk."48 Although this view has not been endorsed by the Eleventh Circuit,49 the Court concludes, as discussed below, that Debtor prevails under either standard of proof.

The facts are not in dispute. Debtor did not know Plaintiff. Debtor consistently described the babysitter as someone with a hyphenated surname and physical characteristics that did not match those of Plaintiff. Plaintiff became involved in the investigation, not because Debtor identified her, but because investigators came upon her similar name among the Sawgrass Apartments' guest cards.50 Without this coincidental connection, investigators likely would not have questioned Plaintiff.

In her affidavit and 2014 deposition,51 Debtor denied that she intended to injure Plaintiff and avers that the Statement was not directed at Plaintiff. Debtor states that she made the Statement out of frustration with her mother's questioning the details of the babysitter story.52 In the recorded conversation, she expressed frustration with investigators whom, she claimed, were not following up on the leads she had provided about the babysitter.53 There is no proffer of evidence rebutting Debtor's sworn statements that she had no intent or purpose to injure Plaintiff or have her mother do so. The Court's review of the entire hour-long July 25, 2008, conversation leads to the conclusion that Debtor's statements under oath are credible, because they are consistent with the material facts surrounding the Statement.

There is insufficient proof, as well, that the utterance of the Statement was substantially certain to injure Plaintiff, even if she was the person to whom Debtor was referring in the Statement. The Statement was made privately to Debtor's parents. It was not a falsehood about Plaintiff, or about her character or conduct. The Statement was made in the context of a complaint to Debtor's parents about investigators declining to show additional photographs or make a sketch artist available. It does not appear that the Statement was made deliberately; this single reference to the "girl down in Kissimmee" was blurted out by Debtor in response to her mother's questions.

In her July 28, 2008, conversation with her parents, Debtor made two references to "her." But, both references more plausibly refer to the described babysitter, not to the "girl down in Kissimmee." Debtor had already agreed with her mother that "if anybody around here knew her they would have come forward by now," indicating that "the girl down in Kissimmee," having already been interviewed, was not the babysitter. If Debtor had sat with a sketch artist, the resulting drawing would have corresponded to Debtor's previous description, which would not have resembled Plaintiff. The same logic applies to the request for the line-up.

There is no doubt that the Statement was erroneous. Debtor had been shown a photo of Plaintiff on July 16, when she declined to identify her as the babysitter. Plaintiff maintains that the Statement undid this previous "exoneration" and reestablished Plaintiff as a child kidnapper or murderer.

But, Plaintiff's claim is exaggerated. Debtor never accused Plaintiff of anything. In the State Court Case, Judge Munyon noted that "[b]oth parties agree that the defendant did not implicate this plaintiff in the disappearance of the child in the July 16, 2008, statements to law enforcement."54 There was no need for any exoneration in the first place.

The Statement seems to have had no effect on investigators' view of Plaintiff as not being involved in Caylee's disappearance. Plaintiff was interviewed by investigators only once, on July 16, 2008; she was never arrested or detained. It is a reasonable inference that investigators had concluded, by the time the Statement was made, that Debtor's story about the babysitter was untrue.

B. The Statement was Not Malicious as to Plaintiff

Debtor has admitted that the babysitter story was untrue. In a general sense, lying to law enforcement investigators would be "wrongful and without just cause?" But, Debtor's fabricated version of events did not implicate Plaintiff in the disappearance of the child.55 The issue is whether the later utterance of the Statement, assuming Plaintiff could prove any injury caused by it,56 was wrongful and without just cause.

There is no established test by which to determine, in the absence of ill-will or physical injury, when wrongful conduct rises to the level of being "malicious." Accordingly, this Court has considered whether utterance of the Statement involves a level of aggravated facts in excess of recklessness.57 In cases where a defamation judgment has been obtained, pre-bankruptcy, some courts have required a finding of the debtor's knowledge of the falsity of the statement before excepting the defamation claim from discharge.58 In cases under § 523(a)(6) involving conversion of collateral, or financial injury, courts have required proof of debtor's knowledge or consciousness of wrongdoing.59 Some courts have required proof that the wrongful conduct was targeted at the creditor.60

Such formulations, requiring consciousness of wrongdoing, are consistent with Eleventh Circuit precedent. In In re Kane, the Eleventh Circuit panel affirmed the bankruptcy court's finding of malice, by implication, where the debtor attorneys' had secretly released their clients' bad faith claims against an insurer, even though they knew that other law firms (creditors) had been engaged, on a contingent fee basis, to prosecute the same bad faith claims and were negotiating with the insurer to settle them at a higher amount.61 By negotiating in secret, the Kanes enriched themselves while knowing that the creditor firms would be damaged by the loss of their contingent fees.62 Thus, the law firms' claims were excepted from the Kanes' discharges. In In re Jennings, the Eleventh Circuit panel affirmed a finding of malicious conduct under § 523(a)(6) where it was established that Ms. Jennings understood enough facts to "know" that her conduct (executing documents to effect a fraudulent transfer from her ex-husband to another of his ex-wives to hinder a creditor's recovery against him on a personal injury claim) was wrongful and unjustified.63

The Court has considered the totality of circumstances surrounding the Statement and concludes that Debtor had no consciousness of wrongdoing, even by implication, when she made the Statement. The Statement was not deliberated; there was no ill-will between Debtor and Plaintiff when the Statement was made; the Statement was made by Debtor only to her parents without any instruction to republish it; the Statement was not false as to Plaintiff, her character or her conduct; the Statement was not directed at Plaintiff; and it was not substantially certain that utterance of the Statement would injure Plaintiff.64 Thus, the Statement was not malicious as to Plaintiff.

C. Public Comments by Cindy Anthony

Plaintiff claims that she was defamed by the Debtor, on an agency theory, through Cindy Anthony's comments to the media. Unlike the Statement by Debtor, Cindy Anthony's later references to "her" and "she" in the public statement on July 28, 2008, likely do refer to the "girl down in Kissimmee." But, Debtor denies ever directing her mother to say that, or anything else, about Plaintiff. At no point in the hour-long July 25, 2008, conversation did Debtor ask her mother to say anything to the public about the "girl down in Kissimmee." Cindy Anthony's July 28, 2008, statement to the media (e.g. "are they lying when they told us there's only one in Central Florida and she's in Kissimmee"), is susceptible to the interpretation, which this Court adopts, that investigators were not searching beyond the one person they had already interviewed."65

Plaintiff's agency theory is legally deficient, as well. Section 523(a)(6) expressly requires that the willful and malicious injury be committed "by the debtor." In In re Nofziger, the bankruptcy court declined to find a debt to be excepted from discharge where the debtor's alleged involvement was having participated in a conspiracy with the creditor's ex-wife to defame him:

This reasoning is persuasive. The cases cited by Plaintiff, are not, because they involve a different exception to discharge for debts arising from false pretenses, false representation or fraud, under § 523(a)(2) which omits the modifier "by the debtor."67

CONCLUSION

Plaintiff has argued that Debtor as an inherently untruthful person. The Court has considered the fact that the entire babysitter story was a lie. The Court has also considered Debtor's conviction for making false statements to law enforcement and her combative refusals to answer a number of questions in her deposition in this proceeding.68 Nevertheless, there is nothing in the Statement (or in the entire hour-long conversation on July 25, 2008) to support Plaintiff's allegations that Debtor intended to portray Plaintiff as a child kidnapper and potentially a child killer, or that Debtor intended to subject Plaintiff to heightened police and media scrutiny. Debtor's statements under oath on the points at issue here are supported by the content and context of the Statement. There is no proffer of evidence to the contrary.

The public may have a well-formed opinion about Debtor, based on the tragic events in 2008 and the televised murder trial. But, the Debtor was acquitted of the aggravated charges and has served time for providing false information to law enforcement. She appears in this Court, like other debtors, entitled to a discharge from her debts unless a creditor can prove, by a preponderance of evidence, that an exception to the discharge applies.

The Court concludes the evidence is not sufficient to prove that Debtor intended to injure the Plaintiff or harm her reputation, or that Debtor acted with malice when she blurted out the reference to the "girl down in Kissimmee" in response to her mother's questions in their private conversation. This one reference was made by Debtor within an hour-long conversation in which Debtor also described the "babysitter" in terms that did not point to Plaintiff. Thus, it was not substantially certain that the Statement would injure Plaintiff. Accordingly, Debtor's utterance of the Statement was neither willful, nor malicious, as required by § 523(a)(6). The later public comments by Debtor's mother do not show an intent to injure Plaintiff and are not linked to any directive by Debtor to target or harm Plaintiff. Additionally, because § 523(a)(6) requires an act by the debtor, Cindy Anthony's comments to the media cannot form the basis to bar the Debtor's discharge.

Therefore, a separate order will be entered granting summary judgment for Debtor and Plaintiff's unliquidated defamation claim will not be excepted from Debtor's discharge.

ORDERED.