ARTHUR J. SCHWAB, District Judge.
The very detailed and complete Complaint in this case alleges that by making or causing to be made three very discreet statements: (1) Defendant defamed Plaintiff, (2) Defendant cast Plaintiff in a false light, and (3) Defendant intentionally inflicted emotional distress upon Plaintiff.
Under Rule 12(b)(6), a Complaint must be dismissed for "failure to state a claim upon which relief can be granted." Detailed factual pleading is not required — Rule 8(a)(2) calls for a "short and plain statement of the claim showing that the pleader is entitled to relief" — but a Complaint must set forth sufficient factual allegations that, taken as true, set forth a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The plausibility standard does not require a showing of probability that a claim has merit, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007), but it does require that a pleading show "more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678. Determining the plausibility of an alleged claim is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679
Building upon the landmark United States Supreme Court decisions in Twombly and Iqbal, the United States Court of Appeals for the Third Circuit explained that a District Court must undertake the following three steps to determine the sufficiency of a Complaint:
Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013) (citation omitted).
The third step requires this Court to consider the specific nature of the claims presented and to determine whether the facts pled to substantiate the claims are sufficient to show a "plausible claim for relief." Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013); see also Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) ("[W]here there are well-pleaded factual allegations, the court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.").
When adjudicating a motion to dismiss for failure to state a claim, the Court must view all of the allegations and facts in the complaint in the light most favorable to the plaintiff, and must grant the plaintiff the benefit of all reasonable inferences that can be derived therefrom. Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). However, the Court need not accept inferences or conclusory allegations that are unsupported by the facts set forth in the complaint. See Reuben v. U.S. Airways, Inc., 500 F. App'x 103, 104 (3d Cir. 2012) (quoting Iqbal, 556 U.S. at 678); Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (stating that District Courts "must accept all of the Complaint's well-pleaded facts as true, but may disregard any legal conclusions"). "While legal conclusions can provide the framework of a Complaint, they must be supported by factual allegations." Iqbal, 556 U.S. at 664.
This Court may not dismiss a Complaint merely because it appears unlikely or improbable that Plaintiff can prove the facts alleged or will ultimately prevail on the merits. Twombly, 550 U.S. at 563 n.8. Instead, this Court must ask whether the facts alleged raise a reasonable expectation that discovery will reveal evidence of the necessary elements. Id. at 556. Generally speaking, a Complaint that provides adequate facts to establish "how, when, and where" will survive a Motion to Dismiss. Fowler, 578 F.3d at 212.
In short, a Motion to Dismiss should be granted if a party fails to allege facts, which could, if established at trial, entitle him/her to relief. Twombly, 550 U.S. at 563 n.8.
As noted above, Plaintiff's Complaint alleges three causes of action against Defendant: (1) defamation, (2) false light, and (3) intentional infliction of emotional distress. Defendant argues that each of these three claims must be dismissed because the claims are legally unsustainable and/or are legally insufficient. Each claim will be addressed, seriatim.
Under Pennsylvania law — the law applicable to this case
In an action for defamation, it is the Court's duty to make the threshold determination whether the challenged statements are capable of a defamatory meaning. Thomas Merton Center v. Rockwell International Corp., 442 A.2d 213 (Pa. 1981), cert. den., 457 U.S. 1134 (1982); Byars v. School Dist. of Phila., 942 F.Supp.2d 552 (Pa. E.D. 2013) ("Whether a statement is capable of a defamatory meaning is a question of law for the court."). If the communication could be understood as defamatory, then it is for the jury to determine whether it was so understood by the recipient. Agriss Roadway Exp., Inc., 483 A.2d 456 (Pa. Super. 1984).
For purposes of the threshold determination whether a communication could be understood as defamatory, it is not necessary for the communication actually to have caused harm to a plaintiff's reputation; defamatory character depends on the general tendency of the words to have such an effect. Id., citing Corabi v. Curtis Publishing Co., 273 A.2d 899 (Pa. 1971); Miller v. Hubbard, 207 A.2d 913 (Pa. Super. 1965); Restatement, supra, § 559 Comment d. However, it is not sufficient for the words to merely embarrass or annoy the plaintiff. Beckman v. Dunn, 419 A.2d 583 (Pa. Super. 1980). A communication is defamatory if it tends to blacken a person's reputation or expose that person to public hatred, contempt, or ridicule, or injure the person in her business or profession. Livingston v. Murray, 612 A.2d 443, 447 (Pa. Super. 1992), alloc. den., 617 A.2d 1275 (Pa. 1992). Defamatory communications tend to lower a person in the estimation of the community, deter third persons from associating with him or her, or adversely affect the person's fitness for the proper conduct of his or her lawful business or profession. Id.
A plaintiff claiming defamation need not be specifically named in the communication, if the plaintiff is pointed to by description or circumstances tending to identify him or her. Cosgrove Studio & Camera Shop, Inc. v. Pane, 182 A.2d 751, 753 (Pa. 1962). The test is "whether the defamatory communication may reasonably be understood as referring to the plaintiff." Zerpol Corp. v. DMP Corp., 561 F.Supp. 404, 410 (E.D. Pa. 1983) (citing Farrell v. Triangle Publ'ns, Inc., 159 A.2d 734 (Pa. 1960)).
The Pennsylvania Superior Court further explained in Dougherty v. Boyerton Times, 547 A.2d 778 (Pa. Super. 1988):
Id. at 783.
Pennsylvania case law also has concluded that only statements of fact can afford a basis for a defamation action. Expressions of opinion cannot. Statements of fact and opinion intermingled can give rise to a claim based on the factual portions of the statement. See Dougherty, 547 A.2d at 782-83 (1988) and Restatement (Second) of Torts, § 556.
Whether a particular statement constitutes a fact or an opinion is a question of law for the trial court to determine. Veno v. Meredith, 515 A.2d 571, 575 (Pa. Super. 1986) citing Braig v. Field Communications, 456 A.2d 1366, 1372 (Pa. Super. 1983), cert. den., 466 U.S. 970 (1984). In Braig, the Superior Court of Pennsylvania adopted Section 566 of the Restatement (Second) of Torts, entitled Expression of Opinion, which provides as follows:
Comment (b) to § 566 of the Restatement explains the two types of expressions of opinion:
Restatement (Second) of Torts, § 566, comment (b). Comment (c) of § 566 explains the constitutional significance of the distinction explained in comment (b):
Restatement (Second) of Torts, § 566, comment (c).
Thus, the trial court must determine whether the challenged statement is an opinion or a fact. If the challenged statement is an opinion, it is actionable only if it "may reasonably be understood to imply the existence of undisclosed defamatory facts justifying the opinion." Veno, 515 A.2d at 575, quoting Beckman, 419 A.2d at 587, citing Restatement (Second) of Torts, § 566.
With these principles in mind, the Court proceeds to examine the three challenged statements set forth in the instant case.
Turning to the detailed and specific facts alleged by Plaintiff, her Complaint first notes that Plaintiff gave an interview with a reporter from KDKA on November 20, 2014 wherein she accused Defendant of sexual abuse and rape (doc. no. 1-3, ¶ 38). Plaintiff asserts that as a result of this interview, three separate communications (either made by Defendant, or on Defendant's behalf) led to her defamation claim.
The "Martin Singer Statement" is the first of the three communications which Plaintiff alleges is defamatory. In it, Plaintiff alleges that a day or two after she gave her interview, the Washington Post published a response whereby "[Defendant], aided by his attorney, Martin Singer, issued [a] statement . . ." which set forth, in relevant part, that ". . . new, never-before-heard claims from women[,] who have come forward in the past two weeks with unsubstantiated, fantastical stories . . . have escalated far past the point of absurdity. These brand new claims about alleged decades-old events are becoming increasingly ridiculous. . . . [I]t makes no sense that not one of these new women who just came forward for the first time ever asserted a legal claim back at the time they allege they had been sexually assaulted." The remainder of the Martin Singer Statement chastises "the media" for failing to corroborate the new "unsubstantiated stories" before publishing their accounts.
Second, with respect to the "Florida Today Statement," Plaintiff alleges that the same day the Martin Singer Statement was released, Defendant himself was interviewed by Florida Today, and during that interview he declined to respond to the "innuendos" that had been made about him and stated that "[p]eople should fact-check".
Third, with respect to the "Camille Cosby Statement," Plaintiff alleges that on December 15, 2014, a letter written by Defendant's wife, Camille Cosby, was published by the Washington Post on Defendant's behalf alleging that the news media failed to "vet" her husband's accusers (of which Plaintiff was one) before publishing or airing the accusers' stories.
Defendant's Brief in Support of its Motion to Dismiss contends that none of the three statements are actionable as defamation. Doc. no. 4, p. 8. Plaintiff's Brief in Opposition to Motion to Dismiss contends that the sum of the three statements "share a common thread of relying on undisclosed, defamatory facts to support the assertions each statement makes." Doc. no. 11, p. 7. Plaintiff contends that "[i]f it is reasonable to infer from the statements that Defendant was actively and knowingly calling Plaintiff a liar and an extortionist, than [sic] the statements are capable of defamatory meaning." Id.
After careful consideration of each of the three statements set forth in the Complaint, and after considering the arguments advanced by each party to this lawsuit as to how those statements could or could not be defamatory under Pennsylvania law, this Court finds that none of the three statements are defamatory.
The Martin Singer Statement is a pure opinion. Per Plaintiff's Complaint, the Martin Singer Statement was made "in response" to Plaintiff's interview wherein she accused Defendant of sexually abusing and raping her. Doc. no. 1-3, ¶ 38. This statement suggests that "new" claims asserted by "new" women — which presumably included Plaintiff's allegations of sexual abuse and rape — escalated beyond "the point of absurdity." Id. Simply put, taking all well pled facts as true, and viewed in the light most favorable to Plaintiff, the Martin Singer Statement describes the Plaintiff's and other women's allegations against Defendant as "beyond absurd" and labels their accounts of past events as "unsubstantiated, fantastical stories."
The entire Martin Singer Statement (as quoted in Plaintiff's Complaint) is an opinionated statement; but, it is not one which implies or alleges that undisclosed, defamatory facts serve as the basis for the opinion. It was a statement, made by Defendant's attorney, in response to serious allegations concerning Defendant's alleged criminal behavior. As noted above, in Pennsylvania, an opinion cannot be defamatory unless it "may reasonably be understood to imply the existence of undisclosed defamatory facts justifying the opinion." Remick v. Manfredy, 238 F.3d 248, 261 (3d Cir. 2001).
Any attorney for any defendant must advance a position contrary to that of the plaintiff. Here, Plaintiff publicly claimed she was sexually abused and raped by Defendant — which is her position; and Defendant, through his attorney, publicly denied those claims by saying the "claims" are unsubstantiated and absurd — which is his legal position. This sort of purely opinionated speech articulated by Defendant's attorney is protected and not actionable as defamatory speech. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974) ("Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact."). This Court does not find the Martin Singer Statement includes language which implies the existence of undisclosed defamatory facts about Plaintiff. As such, this Court considers the Martin Singer Statement to be purely an opinion proffered by an attorney who, while actively engaged in the zealous representation of his client, did not cross the line and defame the Plaintiff. Accordingly, the Court finds that the Martin Singer Statement fails to support Plaintiff's claim for defamation.
Next, turning to the Florida Today Statement, this Court also finds that this statement likewise is not defamatory. In this statement, Defendant refuses to respond to "innuendos" and invites "people" to "fact-check." Doc. no. 1-3, ¶ 41. Although Pennsylvania case law is clear that a plaintiff claiming defamation need not be specifically named in the defamatory statement, the Florida Today Statement fails to even generally refer to the group of women who publicly asserted their allegations of sexual misconduct against Defendant.
However, viewing this statement in a light most favorable to Plaintiff, given the timing of this statement, the Court will assume, arguendo, that Defendant was referring to Plaintiff's and other women's accusations as "innuendos," and was encouraging the public to "fact-check" the claims of these women. This is a far cry from labelling Plaintiff (and the other women who have made similar public assertions) as liars or extortionists.
Pennsylvania law requires that Defendant's words have the general tendency to cause harm to Plaintiff's reputation. It is not sufficient if the words are merely embarrassing or annoying to Plaintiff. The words uttered by Defendant, and made public in his Florida Today Statement, which invite the public to conduct its own investigation and draw its own conclusions about the "innuendos," i.e., the alleged sexual misconduct of Defendant, do not have the general tendency to cause harm to anyone's reputation and, thus, do not rise to the level of defamatory comments.
Finally, the Camille Cosby Statement fails to meet Pennsylvania's legal requirements necessary to assert a claim for defamation. The majority of this statement expresses the speaker's opinion that the media outlets violated their own code of journalistic integrity by publishing Plaintiff's (and the other women's) accounts of the alleged sexual abuse without "vetting" these accusers. This statement targets the media as much, and arguably more so, than the accusers, by claiming that the media failed to properly source or "vet" Plaintiff's and the other women's stories before publishing them. The accusation made by Camille Cosby appears to target the media for failing to get a second source before printing Plaintiff's, and/or other women's very serious accusations regarding Defendant.
In addition, the timing of this statement is further removed from the timing of Plaintiff's own accusations. This Court does not find that this Statement could be read to infer that Plaintiff is a liar or an extortionist and it does not possess the general tendency to cause harm to Plaintiff's reputation. Thus, this Statement fails to support a claim for defamation.
Finally, Plaintiff's Brief in Opposition to the Motion to Dismiss contends that the sum of the three statements "share a common thread of relying on undisclosed, defamatory facts to support the assertions each statement makes." Plaintiff contends that "[i]f it is reasonable to infer from the statements that Defendant was actively and knowingly calling Plaintiff a liar and an extortionist, than [sic] the statements are capable of defamatory meaning." Doc. no. 11, p. 7. Even considering these three statements together as a combined, single statement, this newly "conjoined" statement does not lead to an inference that Plaintiff is a "liar and an extortionist." Accordingly, Defendant's Motion to Dismiss Plaintiff's claim for defamation will be granted.
Under Pennsylvania law, a claim for false light is one of four torts which can support a claim for invasion of privacy. Santillo v. Reed, 634 A.2d 264 (Pa. Super. 1993). To establish a false light invasion of privacy claim, Pennsylvania law requires a plaintiff to show that a highly offensive false statement was publicized by a defendant with knowledge or in reckless disregard of the falsity. Id., citing, Neish v. Beaver Newspapers, Inc., 581 A.2d 619, 624 (Pa. Super. 1990), alloc. den., 593 A.2d 421 (Pa. 1991).
Pennsylvania Courts have relied upon the Restatement (Second) of Torts § 652E for distinguishing a false light claim from a defamation claim. Comment "b." to this Section of the Restatement reads as follows:
Restatement (Second) of Torts § 652E, comment b. Comment "c." defines the term "highly offensive" in this manner:
Restatement (Second) of Torts § 652E, comment c.
In the instant case, none of the three statements described above can be said to be "highly offensive" as that term is defined. Plaintiff's Complaint asserts that the three statements were "highly offensive" (see doc. no. 1-3, ¶ 58), but this is a legal conclusion. The Complaint is otherwise devoid of any facts which support Plaintiff's legal conclusion that the three statements are "highly offensive."
Moreover, none of the three statements specifically malign Plaintiff individually. Even if Plaintiff need not be specifically named in the statement which forms the basis for a false light claim (as is true for a defamation claim) in order to prove that the statement cast her in a false light, Plaintiff must still show that the conduct was "highly offensive" to her, as a reasonable person. None of the three statements provide a factual basis upon which this Court could find that "serious offense" could reasonably have been expected to be taken by a reasonable person in Plaintiff's position. As such, Plaintiff's allegations set forth in her Complaint fall short of providing a basis for her claim for false light, and thus, the Motion to Dismiss Plaintiff's false light claim will be granted.
The Superior Court of Pennsylvania in Britt v. Chestnut Hill Coll. held as follows:
Britt, 632 A.2d 557, 561 (Pa. Super. 1993). The Supreme Court of Pennsylvania has held that in order to sustain a claim for intentional infliction of emotional distress, a plaintiff must allege that the defendant "has acted with intent which is tortious or even criminal, or that he had intended to inflict emotional distress, or even that his conduct has been characterized by `malice,' or a degree of aggravation that would entitle the plaintiff to punitive damages for another tort." Hoy v. Angelone, 720 A.2d 745 (Pa. 1998).
Turning to the facts of this case, Plaintiff's claim for intentional infliction of emotional distress ("IIED") turns on the alleged facts that Defendant drugged her, sexually abused and raped her, and then called her a "liar and extortionist" after she publicly disclosed what he had allegedly done to her. Doc. no. 1-3, ¶¶ 65-66. The three statements referenced in the Complaint, only one of which was uttered by Defendant himself, form the basis of her IIED claim. Two of these statements — the Martin Singer Statement and the Camille Cosby Statement — were not made by Defendant, the alleged attacker. Even assuming those two statements could be attributable to Defendant, through his agents — his attorney and wife — these three statements would have to expressly and/or impliedly deny that Defendant sexually abused and raped Plaintiff.
While none of the three statements go so far as to expressly deny that Defendant sexually abused and raped Plaintiff, read in a light most favorable to Plaintiff, this Court will consider whether they impliedly deny that Defendant did so. Assuming, arguendo, that the statements deny Defendant sexually abused and raped Plaintiff, the question next becomes whether that language so outrageous, atrocious, and contemptable that those statements could give rise to an IIED claim. The Court finds that the language does not rise to the level of outrage necessary to sustain an IIED claim under Pennsylvania law.
In addition, the Court notes — as do
As explained in detail above, each of the three claims asserted by Plaintiff will be dismissed. Each of the claims as asserted by Plaintiff in her Complaint fails as a matter of law. Even assuming the veracity of all that Plaintiff has pled here, the three statements do not support a claim for defamation as defined by Pennsylvania law. Likewise, the Plaintiff's Complaint fails to establish viable claims for false light or intentional infliction of emotional distress as those torts are defined by Pennsylvania law.
Typically, the Court allows a plaintiff to amend a Complaint that is legally deficient unless doing so would be futile. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir.1997) (" . . . a district court may exercise its discretion and deny leave to amend on the basis of . . . futility."). Given the state of the law on this matter, as will be discussed in greater detail below, any amendment would be futile, and thus Defendant's Motion to Dismiss will be granted with prejudice.
The Complaint in this case is very detailed and complete, drafted by experienced counsel. The three complained-of Statements are set forth in great detail. An Amended Complaint could not add anything to these three Statements. The Court is confident that if counsel for Plaintiff had additional complained-of statements, those additional statements would have been made part of the Complaint.
Accordingly, the Court finds that allowing Plaintiff time to amend her Complaint would be futile, and thus, the Court will grant Defendant's Motion and dismiss this case with prejudice. An appropriate Order shall follow.
