ROBERT W. PRATT, District Judge.
Before the Court is a Motion for Summary Judgment, filed by The Stolar Partnership, LLP ("Stolar") and James Bryant ("Bryant") (collectively "Defendants"). Clerk's No. 71. Marcus Mills ("Mills" or "Plaintiff") filed a resistance to the Motion (Clerk's No. 94) and Defendants replied (Clerk's No. 101). The Court held a hearing on the Motion on August 3, 2012. Clerk's No. 103. Following the hearing, Magistrate Judge Walters authorized additional discovery (Clerk's No. 104), and the Court granted each party an opportunity to submit a supplemental brief. Clerk's No. 110. Plaintiff filed a supplemental brief on October 5, 2012. Clerk's No. 113. Defendant filed a supplemental brief on October 19, 2012.
On July 26, 2005, then-University of Iowa ("University") president David Skorton ("Skorton") sent Plaintiff a letter offering him the position of "General Counsel" at the University commencing August 1, 2005. Pl.'s Statement of Add'l Material Facts (hereinafter "Pl.'s Facts") (Clerk's No. 94.2) ¶ 1; Skorton's July 26 Letter.
Skorton's July 26 Letter. According to Mills, he and Skorton spoke about possible revisions to the July 26 letter because "Mills had concerns that he was giving up a position that had career status protections." Pl.'s Facts ¶ 2. Thus, on July 28, 2005, Skorton sent Mills a revised letter. Skorton's July 28 Letter.
On the morning of October 14, 2007, a female student athlete (the "Student Athlete") was sexually assaulted in her dormitory room on campus by two members of the University's football team.
On October 24, 2007, at the request of Betsy Altmaier ("Altmaier"), the Faculty Athletic Representative to the Big Ten Conference and the NCAA, Mills spoke with the Student Athlete's father.
On November 16, 2007, Michael Gartner ("Gartner"), President of the Iowa Board of Regents (the "Board"), sent Mason an email informing her that Gartner was asking personnel from the Board's office to prepare it for "a look at the policies and processes involved in the alleged sexual assault at the University." Pl.'s Facts ¶ 11. Gartner requested that a timeline be prepared regarding the actions taken in response to the assault during the time period from October 14, 2007 to November 6, 2007. Id. Mason forwarded Gartner's email to Mills, Senior Vice President and Treasurer Douglas True ("True"), and Assistant Vice President and Director of Public Safety Charles Green ("Green"). Id. ¶ 12. Consistent with Gartner's request, Tom Evans ("Evans") and Tim Cook ("Cook"), the Board's General Counsel and Associate General Counsel respectively, initially spoke with Mills on November 19, 2007.
In his contacts with Evans related to the Board's review, Mills informed Evans of a November 14, 2007 Order of the Iowa District Court for Johnson County prohibiting the release of information regarding the incident.
On June 11, 2008, Evans issued a report to the Board which concluded that the University had "fully complied" with internal procedural requirements, had offered the Student Athlete appropriate accommodation, and had expressed full support for the Student Athlete.
On July 19 and 21, 2008, the two letters from the Student Athlete's family became public. Id. ¶ 12; Pl.'s Facts ¶ 22. On July 22, 2008, the Board, in a special meeting, established an Advisory Committee composed of three Board members to "reopen the investigation of the University of Iowa's handling of the alleged sexual assault on a female student on the morning of October 14, 2007." Defs.' Facts ¶ 13. The Board tasked the Advisory Committee with completing its work and preparing a report for the Board by September 18, 2008, and explicitly authorized the Advisory Committee to "hire outside counsel as needed to assist in their investigation of the facts." Id. ¶ 14. On July 28, 2008, the Advisory Committee hired Stolar as "Special Counsel" to represent it and the Board
In conducting its investigation,
The Stolar Report contained: 1) an assessment of whether the University's relevant policies and procedures were followed; 2) an identification of problems and concerns with existing policies and procedures; and 3) preliminary recommendations of changes to policies and procedures. Defs.' Facts ¶ 17. Among other things, Stolar concluded that Mills' responses to the incident were "consistent with a culture of a lack of transparency at the University General Counsel's Office and likely contributed to allegations of a University cover-up"; that Mills contacted the Student Athlete's father "out of the blue" and told him that Mills was a "liaison for the University" and that he would "be the Student Athlete's family's contact for information on the investigation"; and that Mills' involvement in "micromanaging the University's response to the incident presented a serious conflict of interest."
The Stolar Report did not contain any recommendations regarding the continued employment of Mills or any other University of Iowa personnel.
In the months following Mills' termination, various articles were published in the Iowa City Press Citizen and the Des Moines Register regarding the matter.
"Maybe that is not what he meant," Bryant said. "It just surprised me, that's all." Defs.' Facts ¶ 33. A substantially similar article appeared in the Des Moines Register on December 29, 2008. Id. ¶ 34.
The term "summary judgment" is something of a misnomer. See D. Brock Hornby, Summary Judgment Without Illusions, 13 Green Bag 2d 273 (Spring 2010). It "suggests a judicial process that is simple, abbreviated, and inexpensive," while in reality, the process is complicated, time-consuming, and expensive.
Federal Rule of Civil Procedure 56(a) provides that "[a] party may move for summary judgment, identifying each claim or defense — or the part of each claim or defense — on which summary judgment is sought." "[S]ummary judgment is an extreme remedy, and one which is not to be granted unless the movant has established his right to a judgment with such clarity as to leave no room for controversy and that the other party is not entitled to recover under any discernible circumstances." Robert Johnson Grain Co. v. Chem. Interchange Co., 541 F.2d 207, 209 (8th Cir. 1976) (citing Windsor v. Bethesda Gen. Hosp., 523 F.2d 891, 893 n. 5 (8th Cir. 1975)). The purpose of summary judgment is not "to cut litigants off from their right of trial by jury if they really have issues to try." Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464, 467, 82 S.Ct. 486, 7
Federal Rule of Civil Procedure 56 mandates the entry of summary judgment upon motion after there has been adequate time for discovery. Summary judgment is appropriately granted when the record, viewed in the light most favorable to the nonmoving party and giving that party the benefit of all reasonable inferences, shows that there is no genuine issue of material fact, and that the moving party is therefore entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a); Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir.1994). The Court does not weigh the evidence, nor does it make credibility determinations. The Court only determines whether there are any disputed issues and, if so, whether those issues are both genuine and material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Wilson v. Myers, 823 F.2d 253, 256 (8th Cir.1987) ("Summary judgment is not designed to weed out dubious claims, but to eliminate those claims with no basis in material fact.") (citing Weight Watchers of Quebec, Ltd. v. Weight Watchers Int'l, Inc., 398 F.Supp. 1047, 1055 (E.D.N.Y. 1975)).
In a summary judgment motion, the moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact based on the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Anderson, 477 U.S. at 248, 106 S.Ct. 2505. If the moving party has carried its burden, the nonmoving party must then go beyond its original pleadings and designate specific facts showing that there remains a genuine issue of material fact that needs to be resolved by a trial. See Fed.R.Civ.P. 56(c). This additional showing can be by affidavits, depositions, answers to interrogatories, or the admissions on file. Id.; Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548; Anderson, 477 U.S. at 257, 106 S.Ct. 2505. "[T]he mere existence of some alleged factual dispute between the parties will not defeat a motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505. An issue is "genuine" if the evidence is sufficient to persuade a reasonable jury to return a verdict for the nonmoving party. See id. at 248, 106 S.Ct. 2505. "As to materiality, the substantive law will identify which facts are material.... Factual disputes that are irrelevant or unnecessary will not be counted." Id.
Mills' Amended Complaint asserts the following counts against Stolar and Bryant: 1) Count III for false light invasion of privacy and defamation; 2) Count VI for violation of due process; and 3) Count VII for interference with contract.
Under Iowa law, defamation consists of the twin torts of libel and slander. Kiesau v. Bantz, 686 N.W.2d 164, 174 (Iowa 2004) (citing Theisen v. Covenant Med. Ctr., Inc., 636 N.W.2d 74, 83 (Iowa 2001)). More specifically: "Libel in Iowa is the `malicious publication, expressed either in printing or in writing, or by signs and pictures, tending to injure the reputation of another person or to expose [the person] to public hatred, contempt, or ridicule or to injure [the person] in the maintenance of [the person's] business.'" Vinson v. Linn-Mar Cmty. Sch. Dist., 360 N.W.2d 108, 115 (Iowa 1984) (quoting Plendl v. Beuttler, 253 Iowa 259, 111 N.W.2d 669, 670-71 (1961)). Slander's definition is nearly identical to that of libel, however, the injurious words are conveyed by oral statements. Id.
To state a claim for defamation, Plaintiff must establish the following prima facie elements: 1) Defendants made a statement about Plaintiff; 2) the statement was false; 3) the statement was made with malice; 4) the statement was communicated to somebody other than Plaintiff, 5) the statement tended to injure the reputation of Plaintiff, expose Plaintiff to public hatred, contempt or ridicule, or injured Plaintiff in his efforts to maintain his business; 6) the Summary judgment in favor of Defendants is warranted in light of Plaintiff's non-resistance. See L.R. 56(b)(1) (requiring a party resisting a motion for summary judgment to file a brief "in which the resisting party responds to each of the grounds asserted in the motion for summary judgment"), statement caused damage to Plaintiff; and 7) the amount of damage. See Iowa Civil Jury Ins. 2100.3; see also Vinson, 360 N.W.2d at 115 ("In actions based on language not libelous per se, all of these elements must be proved ... before recovery can be had." (citations omitted)).
Fey v. King, 194 Iowa 835, 190 N.W. 519, 521 (Iowa 1922) (citations omitted). Thus, defamatory statements are those that "tend[] to injure the reputation of another person or to expose [the person] to public hatred, contempt, or ridicule or to injure [the person] in the maintenance of [the person's] business." Vinson, 360 N.W.2d at 115; see also Schlegel v. Ottumwa Courier, 585 N.W.2d 217, 221 (Iowa 1998) (noting that defamation is based on the "public policy that individuals should be free to enjoy their reputation unimpaired by false and defamatory attacks" and characterizing statements as defamatory per se when they have "a natural tendency to provoke the plaintiff to wrath or expose him to public hatred, contempt, or ridicule, or to deprive him of the benefit of public confidence or social intercourse." (citing 50 Am. Jur.2d, Libel & Slander, § 2, at 338-39 (1995))). Taken a step further, a statement is defamatory per se if the words "are of such a nature, whether true or not, that it can be presumed as a matter of law that their publication or conveyance will have a libelous or slanderous effect." Vinson, 360 N.W.2d at 116 (citing Haas v. Evening Democrat Co., 252 Iowa 517, 107 N.W.2d 444, 447 (1961)). For example, "[a]n attack on the integrity and moral character of a party is [slanderous] per se." Id. (citing Shaw Cleaners & Dyers v. Des Moines Dress Club, 215 Iowa 1130, 245 N.W. 231, 234 (1932)).
Plaintiff relies on the following statements from the Stolar Report as the foundation for his defamation claim against Stolar: 1) "Mills' responses to the incident were consistent with a culture of a lack of transparency at the University General Counsel's Office and likely contributed to the allegations of a University cover-up" ("Statement A"); 2) "Mills' involvement in micromanaging the University's response to the incident presented a serious conflict of interest" ("Statement B"); 3) "On or about October 24, according to the Student Athlete's father, Mills contacted him `out of the blue' and told him that he was a `liaison for the University'" ("Statement C"); and 4) "Mills told the Student Athlete's father that from that point on, Mills would be the Student Athlete's family's contact for information on the investigation" ("Statement D"). See Pl.'s Br.
Read in context, with the allegedly defamatory material italicized, the Stolar Report provides:
Defs.' App. at 168.
Mills argues that these Statements C and D satisfy the second (falsity) and third (malice) elements of a prima facie case because: 1) "Mills has testified that the statements are false"; 2) Plaintiff's expert, Mark McCormick ("McCormick"), stated in his expert report that neither Stolar nor Bryant asked Mills about his conversations with the father, the Stolar Report does not refer to Mills' notes or their contents, and the Stolar Report "only credits conclusory assertions attributed to [the father]." Pl.'s Br. at 13. Thus, Mills concludes: "[t]he reckless and unfounded allegations against Mills by Stolar at a minimum raise a genuine issue of fact regarding whether [these statements] were made with malice."
Neither of the italicized statements are actionable as defamation because neither statement expresses an opinion or conclusion of Stolar. Rather, it is plainly apparent that both statements merely recount comments made by the Student Athlete's father to the Stolar investigators. Indeed, both statements cite to the "Investigators' interview with the Student Athlete's father" as the source of the information, and the first statement additionally contains an in-text notation attributing the "out of the blue" and "liaison" comments to "the Student Athlete's father." Id. While Mills states in affidavits that the "Stolar Report state[ments are] false," his quibble is with the father's recollection of events versus his own — not with the Stolar Report's recounting of the father's statements. See Pl.'s App. at 5 (Mills Aff.), ¶ 22 ("The Stolar Report stated that I contacted the Student Athlete's father `out of the blue' and told him that I was a `liaison for the University.' This statement is false."), ¶ 24 ("The Stolar report stated that I contacted the student athlete's father and told him that `Mills would be the Student Athlete's family's contact for information on the investigation.' This statement is false."). While both Mills and his expert clearly believe that Mills neither contacted the Student Athlete's family "out of blue" nor told them that he would be their "liaison" or "contact for information," neither contends that the father did not report such things to Stolar or that Stolar falsely
Mills urges that Statement A in the Stolar Report, i.e., that "Mills' responses to the incident were consistent with a culture of a lack of transparency at the University General Counsel's Office and likely contributed to the allegations of a University cover-up," is false and was made with malice. In support of the falsity of Statement A, Mills points out that Mills, Mason, and Altmaier have all "testified that there was not a `culture of a lack of transparency at the University General Counsel's office.'" Pl.'s Br. at 12. In support of malice regarding Statement A, Mills points to McCormick's expert report which states that the Stolar report is "reckless in its inaccurate and unfounded allegations against Marc Mills. The trier of fact could conclude that the Stolar Partnership determined to make Marc Mills a scapegoat." Id.
Mills argues that Statement B in the Stolar Report, i.e., that "Marcus Mills' involvement in micromanaging the University's response to the incident presented a serious conflict of interest," satisfies the second and third elements of a prima facie case. Pl.'s Br. at 13. Mills points to McCormick's expert report which states that "Marc Mills complied fully with the standard in Rule 32:4.3 of the Iowa Rules of Professional Conduct in his communications with [the father]," and that "[n]o evidentiary or legal support exists for the Stolar report's assertion that Marc Mills had a conflict of interest in responding to [the father's] inquiries." Id. According to Mills, McCormick's testimony establishes a "genuine issue of fact[] ... regarding whether the statement is false and whether it was made with malice." Id.
The mere fact that Plaintiff, his expert, or anyone else disagrees with the conclusions of the Stolar Report does not generate a genuine issue of material fact on the falsity of either Statement A or Statement B. Indeed, the disagreement highlights the fact that these statements are expressions of opinion that are not subject to an action for defamation. "Opinion is absolutely protected under the first amendment." Jones v. Palmer Commc'ns, Inc., 440 N.W.2d 884, 891 (Iowa 1989). Sometimes, however, a statement couched as an opinion may contain or imply sufficient factual content, that if untrue, could still support a defamation action. See Yates v. Iowa W. Racing Ass'n, 721 N.W.2d 762, 768-71 (Iowa 2006) ("`[S]tatements of opinion can be actionable if they imply a provable false fact, or rely upon stated facts that are provably false.'" (quoting Moldea v. New York Times Co., 22 F.3d 310, 313 (D.C.Cir. 1994))). Thus, in determining whether any particular statement of seeming opinion is actionable, the Court must determine "whether the alleged defamatory statement can reasonably be interpreted as stating actual facts and whether those facts are capable of being proven true or false." Id. at 771. The analysis must
Statements A and B do not have precise or specific meanings, are not in themselves objectively capable of being proved or disproved, and do not imply facts that are objectively capable of being proved or disproved. Even if the Court were to permit every single individual involved in any way with the University and the assault investigation to testify at a trial in this case, it would be entirely reasonable for some jurors to believe, and for some to disbelieve, that there was a "culture of a lack of transparency" in the General Counsel's office, that Mills' actions were consistent with that culture, that Mills "micromanaged" the University's response, and that such response constituted a "serious conflict of interest." Given this fact, the Court does not believe that a reader of the Stolar Report could reasonably believe that Statements A and B are anything more than Stolar's First Amendment protected opinions.
In support of his defamation claim against Bryant, Mills relies on Bryant's comments to the media, which were printed in both the Iowa City Press Citizen and the Des Moines Register. Pl.'s Br. at 14-15. In particular, Bryant is quoted by both media outlets as having explained his note that Mills "viewed inv. as political" as follows: "He was just kind of like, `We all know this is politics and what this is all about, but I am willing to cooperate'.... He didn't use those exact words, although he referred to `politics' a few times. I don't want to say he said you are just going through the motions, but that's what came through. I will do what I need to do to make it go away.... Maybe that is not what he meant.... It just surprised me, that's all." Id.; Defs.' Facts ¶¶ 33-34; Defs.' App. at 368-71.
In support of his claim that Bryant's comments were defamatory, Mills points to his own testimony that Bryant's statements are false and Bryant's acknowledgment within the statement that it did not reflect Mills' "exact" words, arguing that "Bryant clearly went beyond the facts known to him when he gave a newspaper reporter an inaccurate version of what Mills said to him." Pl.'s Br. at 16. As with the Stolar Report statements, however, the Court finds the statements insufficient to be actionable defamation. The entire context and tenor of Bryant's statement clearly indicates that he was relaying his own subjective impressions of his conversation with Mills. There is nothing in the statement that implies that Bryant knows additional facts that would support his opinion, and there is no content in the statement that is objectively capable of being proved true or false.
Mills alleges in Count III that the same statements supporting his claim for defamation,
Defendants primarily argue that Mills cannot establish that Defendants "knew or entertained serious doubts as to the veracity of the Stolar Report or Bryant's statements. There is no evidence that Stolar intended to produce a false report [or that] Stolar made statements or expressed opinions in the Stolar Report that it knew or suspected were false, let alone over which Stolar `entertained serious doubts.'"
Defendants argue that even if Plaintiff has asserted viable claims for defamation or false light invasion of privacy, they are entitled to summary judgment on the basis of qualified privilege. "Qualified privilege is an affirmative defense which must be pleaded and proved." Vinson, 360 N.W.2d at 116. Defendants properly raised qualified privilege as an affirmative defense to Plaintiffs' Complaint in their Answer. See Clerk's No. 40 at 20. Iowa law regarding privileged communications provides:
Vojak, 161 N.W.2d at 105.
A qualified privilege may be found to exist with respect to otherwise defamatory statements if: 1) the statement was made in good faith; 2) the defendant had an interest to uphold; 3) the scope of the statement was limited to the identified interest; and 4) the statement was published on a proper occasion, in a proper manner, and to proper parties only. Barreca v. Nickolas, 683 N.W.2d 111, 118 (Iowa 2004) (quoting Winckel v. Von Maur, Inc., 652 N.W.2d 453, 458 (Iowa 2002)). The question of whether the privilege is available in a particular case is ordinarily one for the Court to determine, rather than a jury. Vinson, 360 N.W.2d at 116.
Plaintiff argues Defendants have failed to demonstrate their entitlement to a qualified privilege because he has provided "substantial evidence" that Defendants statements were not made in good faith, were made outside the scope of any interest Defendants had to uphold, and were not appropriately limited in their publication. Pl.'s Br. at 2, 16-17. Plaintiff further argues that even if Defendants are protected by the qualified privilege, they have abused the privilege by acting with malice, by publishing the statements excessively, and by publishing the statements to persons who did not have a legitimate interest. Id. at 18. The Court will address each argument in turn.
Plaintiff contends that Defendants' statements were not made in good faith "because they were made with reckless disregard for their truth or falsity." Pl.'s Br. at 17. According to Plaintiff, "[s]ubstantial evidence of Stolar and Bryant's reckless disregard for the truth and falsity of their statements is contained in the Expert Report of Mark McCormick." Id. In particular, Plaintiff points to: 1) McCormick's assertion that there is no support for the Stolar Report's conclusion that Mills acted under a conflict of interest; 2) McCormick's criticism of Bryant for not asking Mills about his conversations with the Student Athlete's father; and 3) McCormick's criticism of the Stolar Report for not referring to Mills' notes and "only credit[ing] conclusory assertions attributed to [the father]." Id. According to Mills, the "reckless and unfounded allegations against Mills by Stolar at a minimum raise a genuine issue of fact regarding whether Stolar and Bryant's statements were made in good faith, and the issue should be decided by the jury." Id.
The Court disagrees with Plaintiff and finds that Defendants' statements
Defendants contend that the Advisory Committee and Board retained Stolar to represent them, to conduct an independent investigation into the handling of the incident involving the Student Athlete, and to report to them the findings of that independent investigation. The Board and Advisory Committee's obligations to the public and Defendants' interest in complying with the Board and Advisory Committee's charge are sufficient to sustain a qualified privilege. See Restatement (Second) of Torts § 598 (1977) ("An occasion makes a publication conditionally privileged if the circumstances induce a correct or reasonable belief that (a) there is information that affects a sufficiently important public interest, and (b) the public interest requires the communication of defamatory matter to a public officer or a private citizen who is authorized or privileged to take action if the defamatory matter is true."); see Pl.'s Br. at 17-18 ("Mills will accept Stolar's stated interest for purposes of the motion for summary Judgment."); Pl.'s Supp. Br. at 8 ("For purposes of qualified privilege, the interest to uphold was conducting an investigation to provide the public the truth and a complete understanding of the events following the sexual assault." (capitalization modified from original)).
Plaintiff makes no argument whatsoever in his initial brief regarding whether Stolar exceeded the bounds of its interest, contending only that "Bryant's inaccurate statement implying that Mills believed the investigations [sic] was `politics' clearly was outside the scope of [Defendants'] interest." Pl.'s Br. at 18 ("[Bryant's comment] was a gratuitous statement made three months after Stolar had submitted its investigation to the Regents. Bryant admitted the statement was not what Mills said.... Bryant's statement did not advance the investigation conducted by Stolar and served no purpose other than to further impugn the integrity of Mills."). In his supplemental brief, however, Mills argues that each of Statements A-D of the Stolar Report are false
Plaintiff's arguments are not convincing. Regarding Plaintiff's assertion that Bryant was acting outside the scope of his identifiable interest, there appears no dispute that the Board released Stolar's notes about the investigation and requested that Stolar personnel be responsive to media requests. See Defs.' App. at 87 (Bryant testifying in deposition that he made the statements in question "in response to our documents being made public and questions about those" and that "[t]he Board of Regents made it explicitly clear with us when they hired us that we were expected to be responsible to the media, to return their calls and to cooperate, and be transparent"). Regarding Plaintiff's claims that Statements A-D in the Stolar Report exceeded the interest to uphold, the Court reiterates its conclusion discussed throughout this Order that there is no evidence in the record that would support a belief that Defendants knew that any statement made in the Stolar Report or to the media was false, or that Defendants acted with reckless disregard for the truth or falsity of their statements. Finally, Plaintiffs citations to emails of Board members and to Bryant's notes about comments by the Board and Advisory Committee simply do not support a conclusion that Defendants exceeded the bounds of their interest.
Plaintiffs final argument against the existence of a qualified privilege is premised on the fact that Defendants disclosed the report to the Board at a public meeting. Pl.'s Br. at 18. According to Plaintiff, the qualified privilege "does not extend to statements made to the general public." Id. (citing Wright v. Keokuk Cnty. Health Ctr., 399 F.Supp.2d 938, 953 (S.D.Iowa 2005)). The Court finds this argument unconvincing for several reasons. First, while Defendants did disclose the Report to the Board during a public session, Defendants were requested to do so by the Board. Second, the Report itself — which notably contains the statements about which Mills complains — was not disclosed to the public during the Board meeting; rather, the Board itself later disclosed the document to the public on its website. Third, disclosing a Report to the Board during a public meeting is not equivalent to a direct disclosure to the public. Finally, the circumstances of this case — involving a highly publicized sexual
For the reasons stated, the Court finds that Defendants are entitled to a qualified privilege protecting their communications of the allegedly defamatory statements in this case. Nonetheless, "qualified privilege is a defeasible immunity from liability; that is, a qualified privilege may be defeated under certain circumstances." See Barreca, 683 N.W.2d at 117. In particular, a qualified privilege is "lost when it is abused," such as when a defamatory statement is published with "actual malice." Id. Here, Plaintiff again relies on solely on McCormick's expert witness report as supporting a conclusion that Defendants acted with actual malice. See Pl.'s Br. at 18 ("[I]f it is found that Stolar and Bryant are protected by the qualified privilege, they have abused the privilege by acting with malice, by publishing the statements excessively, and by publishing the statements to persons not having a legitimate interest in the subject.
In Barreca, the Iowa Supreme Court adopted the actual malice standard of New York Times v. Sullivan for cases where an abuse of qualified privilege is alleged. Barreca, 683 N.W.2d at 120. Barreca provides that "[a]ctual malice occurs when a statement is made with knowledge that it is false or with reckless disregard for its truth or falsity." (citing Taggart v. Drake University, 549 N.W.2d 796, 804 (Iowa 1996), citing in turn New York Times, 376 U.S. 254, 84 S.Ct. 710 (1964)). The question of whether a defendant acted with actual malice is "ordinarily a matter for the jury." Id. at 123. Nonetheless, to support an inference of actual malice, there must be "`sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.... [T]he actual malice standard require[s] a high degree of awareness of ... probable falsity.'" Id. at 123 (quoting Caveman Adventures UN, Ltd. v. Press-Citizen Co., Inc., 633 N.W.2d 757, 762 (Iowa 2001)).
The Court does not believe a genuine issue regarding this high degree of awareness of probable falsity is raised by the mere fact that Plaintiff has employed an expert who reached different conclusions about Mills' role in the University's response to the Student Athlete's sexual assault than did Defendants. Plaintiff has not pointed to one substantive piece of evidence in the record that would support a conclusion that Defendants made any of the allegedly defamatory statements "with knowledge that [they were] false or with reckless disregard for [their] truth or falsity." While the Court acknowledges its obligation to construe every reasonable inference in the light most favorable to Plaintiff, there is, simply put, no evidence
In Count VII of his Amended Complaint, Mills asserts that: 1) he "had a contract or expectancy of continued employment with the University of Iowa"; 2) Defendants knew of Mills' contract or expectancy; 3) Defendants "intentionally and improperly interfered with Mills' contract or expectancy of continued employment... by conducting an inadequate investigation of Mills' involvement in the University investigation and falsely stating that Mills had a conflict of interest and micromanaged the University investigation"; 4) Defendants' interference caused the University to terminate Mills' employment; and 5) Mills was damaged by Defendants' interference with his contract or expectancy of continued employment.
To sustain a claim for interference with contract, Mills must prove: 1) he had a contract with the University; 2) Defendants knew of Mills' contract; 3) Defendants intentionally and improperly interfered with Mills' contract; 4) Defendants' interference caused the University not to perform; and 5) Mills was damaged. See Kern v. Palmer Coll. of Chiropractic, 757 N.W.2d 651, 662 (Iowa 2008). In support of these elements, Mills vehemently argues that his acceptance of the offer of employment in Skorton's July 28 Letter demonstrates that he had a "written employment contract providing that he would serve for an initial term of not less than five years." Pl.'s Facts ¶ 4, Pl.'s Br. at 23. On October 3, 2012, however, the Court conducted an extensive analysis of Mills' position in this regard and rejected it, concluding that he maintained only an at-will employment relationship with the University.
Since Mills was an at-will employee of the University, he cannot sustain a claim for interference with contract. Rather, his claim must be characterized as one for interference with a prospective advantage or business expectancy. See Water Dev. Co. v. Bd. of Water Works, 488 N.W.2d 158, 162 (Iowa 1992) (citing W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 129, at 996 (5th ed. 1984)). While such a claim "calls for evidence on the same elements as [an interference with existing contract claim] relative to future business," Burke v. Hawkeye Nat'l Life Ins. Co., 474 N.W.2d 110, 114 (Iowa 1991), the required "proof is more demanding than when the claimed interference is with an existing contract." Water Dev. Co., 488 N.W.2d at 162. In particular, a claim for interference with a prospective advantage or business expectancy requires "substantial evidence" that "the sole or predominant purpose of the actor's conduct was to financially injure or destroy the plaintiff." Willey v. Riley, 541 N.W.2d 521, 526-27 (Iowa 1995).
Willey, 541 N.W.2d at 527.
Defendants assert that Mills cannot establish the third and fourth elements of an interference claim,
Mills agrees that the primary points of contention are the third and fourth elements of an interference claim, but does not address Defendants' argument regarding "predominant or sole motive."
Pl.'s Br. at 25-26.
The Court finds Mills' arguments unconvincing. Even assuming that Mills has adequately substantiated the fourth element of his claim, there simply is no genuine issue of material fact as to the third element. First, the record is devoid of any evidence that Defendants "intentionally" interfered with Mills' expectation of continued employment. See Green v. Racing Ass'n of Cent. Iowa, 713 N.W.2d 234, 244 (Iowa 2006) (stating that interference "must be both intentional and improper" (emphasis modified from original)); Hill v. Winnebago Indus., Inc., 522 N.W.2d 326, 328 (Iowa Ct.App.1994) ("Interference with a contract is intentional if the defendant either interferes with the contract on purpose or knows the conduct is substantially certain to interfere with the contract." (citing Restatement (Second) of Torts § 766 cmt. j (1979))). Mills has not pointed to a single record citation that would support a conclusion that either Stolar or Bryant had any intent to interfere with Mills' employment with the University. Indeed, Mills admits that Stolar was retained by the Advisory Committee of the Board "to conduct an investigation of the responses and actions of the University of Iowa, its administration, departments and personnel to an alleged sexual assault of a University student/athlete on October 14, 2007," that neither the Board nor the Advisory Committee asked Stolar to "make any recommendations as to the continued employment of any persons employed by the University," and that "Stolar did not form any opinions on [the subject of any University employee's continued employment]." See Defs.' Facts ¶¶ 15, 18; Pl.'s Resp. to Defs.' Facts ¶¶ 15, 18. Moreover, although she admits having taken
Second, even assuming that Defendants may have harbored some intent to interfere with Mills' employment, the record is still deficient of any evidence that there was any "improper" interference with Mills' employment. See Berger v. Cas' Feed Store, Inc., 543 N.W.2d 597, 599 (Iowa 1996) (quoting Restatement (Second) of Torts § 767 cmt. d) ("If there is no desire at all to accomplish the interference and it is brought about only as a necessary consequence of the conduct of the actor engaged in for an entirely different purpose, his knowledge of this makes the interference intentional, but the factor of motive carries little weight toward producing a determination that the interference was improper."). Factors that are to be considered in determining whether interference is improper include: 1) the nature of the conduct; 2) Defendants' motive; 3) the interests of the party with which the conduct interferes; 4) the interest sought to be advanced by Defendants; 5) the social interests in protecting Defendants' freedom of action and the contractual interests of the other party; 6) the nearness or remoteness of Defendants' conduct to the interference; and 7) the relations between the parties. See Green, 713 N.W.2d at 244; Toney v. Casey's Gen. Stores, Inc., 460 N.W.2d 849, 853 (Iowa 1990) (citing Restatement (Second) of Torts § 767 (1979)). Here, it is undisputed that Stolar was retained by the Board via the Advisory Committee to conduct an independent evaluation of the University's handling of the Student Athlete's sexual assault, that Defendants and Mills had no prior knowledge of one another, that Stolar prepared the Report for the benefit of and at the behest of its clients (the Advisory Committee and the Board), that the Stolar Report was critical of several individuals and entities in addition to Mills,
Finally, as the Court previously stated, because Mills was an at-will employee of the University, he must do more than show mere intentional and improper interference; he must provide "substantial evidence
For the reasons discussed herein, the Court finds there are no genuine issues of material fact on any of Plaintiff's claims against Defendants Stolar and Bryant. Defendants' Motion for Summary Judgment (Clerk's No. 71) is, accordingly, GRANTED.
IT IS SO ORDERED.
Defendants argued that summary judgment in their favor on Count VI was proper because "Stolar did not have the power to grant Plaintiff a name clearing hearing." Defs.' Br. (Clerk's No. 74) at 32. In particular, Defendants pointed to the following testimony from Mills' deposition:
Q. And would you agree that [Stolar and Bryant] don't have the power to hold a name-clearing hearing?
A. Not in terms of legal power, yes. I think they have the power in terms of their prior work and influence with the University, but not — they don't have the legal power in that respect.
Id. at 33 (citing Defs.' App. 93 (Mills Dep. 21:14-19)).
In resisting Defendants' Motion for Summary Judgment, Mills neither referenced Count VI nor made any response to Defendants' arguments. See generally Pl.'s Br. (Clerk's No. 96) Moreover, at the Court's August 3, 2012 hearing, Plaintiff neither commented upon nor refuted the following comments by Defendants' counsel: "We filed a motion for summary judgment that included an attack on the Stolar and Bryant component of Count VI.... I do not believe that Mills resisted that portion of our motion for summary judgment.... And so I don't believe that there's a legitimate issue with respect to count VI and my clients." Hr'g Tr. at 55.
Pl.'s Br. at 14.
The Restatement (Second) of Torts provides that statements are defamatory per se when they impute to another "a matter incompatible with an individual's business, trade, profession, or office, as stated in § 573." See Restatement (Second) of Torts § 570 (1977). Section 573 provides: "One who publishes a slander that ascribes to another conduct, characteristics or a condition that would adversely affect his fitness for the proper conduct of his lawful business, trade or profession, or of his public or private office ... is subject to liability without proof of special harm." The comments to § 573 state that the "imputation must be of such a character as to disparage the other in the pursuit of his business... or tend to harm him in it." Restatement (Second) of Torts § 573 cmt. c. Moreover, a statement imputing a single mistake or act of misconduct is actionable "only if the act fairly implies an habitual course of similar conduct, or the want of the qualities or skill that the public is reasonable entitled to expect of persons engaged in such a calling." Id. cmt. d. Thus, "a statement that a lawyer has erred in the handling of a particular case does not necessarily imply that he is unlearned or incapable of adequately protecting his clients." Id.
None of the four statements from the Stolar Report rise to the level of defamation per se under § 573. As discussed supra, Statements C and D do not even purport to be statements of Stolar. Statement B cannot be read as fairly implying an habitual course of conduct; rather, at best, it can be read as implying that Mills' handling of this particular case was improper, placing it squarely within § 573, comment d's exclusion. Statement A also does not qualify because nothing about a "culture of a lack of transparency" is inherently or necessarily incompatible with Plaintiff's role as General Counsel.
