Opinion
Case No. 5:01CV2480
February 27, 2002
MEMORANDUM OF OPINION AND ORDER
Before the Court is Defendant's Motion to Dismiss (ECF No. 6), which the Court has converted to a motion for summary judgment. For the reasons stated below, Defendant's motion is GRANTED.
I. BACKGROUND
On September 11, 2001, Defendant National Enquirer, Inc. ("The Enquirer") published an article concerning the firing of a security guard who used physical force to stop a bank robbery at a bank that he had been guarding. (ECF No. 6, Ex. A). The article appeared under a headline that read: "What a Way to Treat a Hero! He Loses His Job For Bagging a Bank Robber." Id. Beneath the headline is a picture of a security guard wearing a uniform with a "Mid-American Security" patch on the sleeve. Id.
The first paragraph of the article describes how Tony Longcoy wrestled a bank robber to the ground and ended up losing his job as a result:
When bank guard Tony Longcoy wrestled a bank robber to the ground, he got pats on the back from the FBI, congratulations from local cops, and cheers from frightened bank customers. But from the bank he got — a pink slip.Id. The article goes on to detail how Longcoy, a 34-year-old security officer, foiled a bank robbery at a Charter One bank in Cleveland only to have the bank cancel its contract with the security company that employed him. Id. Longcoy states in the article that he "was supposed to just be a visual deterrent and to take a description if somebody tried to rob the bank." Id. Longcoy claims that when he made a split second decision to wrestle a bank robber to the ground rather than merely observing his appearance, a female employee of the bank confronted him and berated him for jeopardizing the safety of the bank tellers. Id.
The article explains that Charter One did not actually fire Longcoy, but instead terminated its contract with the security company that employed him. Id. Stephen Phillips, a Charter One spokesman, is quoted in the article as stating that: "[Longcoy's] actions violated established procedures and put everyone at the branch at risk, including himself" Id. The article notes that some customers of Charter One have closed their accounts "in outrage over Longcoy's dismissal," and goes on to state that "Longcoy is still without a steady job." Id. The article concludes by quoting Longcoy as stating: "I've got no choice but to take every little job I can get. . . . And the landlord is going to sell the house we're renting. My loyalty to the bank didn't seem to mean anything."
On or about September 28, 2001, Mid-American Security Service, Inc. ("Mid-American") filed a Complaint against The Enquirer in the Summit County Court of Common Pleas. (ECF No. 1, Ex. A). In the Complaint, Mid-American seeks consequential, compensatory, and punitive damages in excess of $575,000 from The Enquirer for defamation, false light, and injurious falsehood. Id. Mid-American contends that the article gave readers the false impression that Mid-American fired Longcoy, when in fact, it hired him after learning of his success in thwarting the bank robbery.
On October 29, 2001, The Enquirer removed the case to this Court on the basis of diversity jurisdiction, 28 U.S.C. § 1332. (ECF No. 1). On November 5, 2001, The Enquirer filed a Motion to Dismiss (ECF No. 6), in which it argued that each of Mid-American's claims should be dismissed under Federal Civil Rule 12(b)(6) because: (1) the article is not defamatory; (2) Ohio does not recognize a claim for false light; and (3) Mid-American has failed to present a valid claim for injurious falsehood. On December 12, 2001, Plaintiff filed a Memorandum in Opposition to Defendant's Motion to Dismiss. (ECF No. 10). In the opposition brief, Mid-American argues that: (1) the article is defamatory per se; (2) Ohio does recognize a claim for false light; and (3) it has stated a claim for injurious falsehood. Id.
In support of its motion, Plaintiff filed four exhibits. Exhibit A is a copy of the article that appeared in The Enquirer. Id. at Ex. A. Exhibits B is the affidavit of Margaret Jackson, a Mid-American customer who claims that she was misled by the article. Id. at Ex. B. Exhibit C is the affidavit of Mid-American, President William Fink, who claims that the company received ten negative email messages after the article was published. Id. at Ex. C. Exhibit D is the affidavit of Robert Carmean, an employee of Mid-American who spoke to Ms. Jackson about the article. Id. at Ex.D.
On December 28, 2001, The Enquirer filed a Motion to Strike Exhibits B, C, and D, as falling outside the scope of a Rule 12(b)(6) motion to dismiss. (ECF No. 13). On February 5, 2002, the Court issued an Order (ECF No. 20) denying Defendant's Motion to Strike and informing the parties that because documents outside the scope of the pleadings would be considered, the Motion to Dismiss would be converted to a Motion for Summary Judgment. The Court gave the parties until February 15, 2002, to submit additional documents for the Court's consideration.
On February 15, 2002, Plaintiff submitted an affidavit from Tony Longcoy (ECF No. 22). After reviewing the parties' briefs and the applicable law, the Court finds that there are no genuine issues of material fact and that Defendant is entitled to judgment as a matter of law on each of Plaintiffs claims.
II. LEGAL ANALYSIS
A. The Summary Judgment Standard
Under Fed.R.Civ.P. 56(c), summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The court is to determine "whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The court views the evidence of record and draws all reasonable inferences in the light most favorable to the nonmoving party. See LaPointe v. United Autoworkers Local 600, 8 F.3d 376, 378 (6th Cir. 1993).
Summary judgment is appropriate if a party who bears the burden of proof at trial does not establish an essential element of its case. Tolton v. American Biodyne, Inc., 48 F.3d 937, 941 (6th Cir. 1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-248. In order for there to be a genuine issue for trial, there must be sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. Id. at 249.
As stated by the Supreme Court:
. . . . Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.' [citations omitted] . . . Rule 56 must be construed with due regard not only for the rights of persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis.Celotex, 477 U.S. at 327.
B. False Light
Plaintiff contends that Defendant placed Plaintiff in a false light by conveying "the false and defamatory idea that Plaintiff fired Longcoy from his job after Longcoy heroically arrested a bank robber." (ECF No 1, Ex. A, ¶ 13). Defendant argues that Plaintiff's false light claim must be dismissed because Ohio law does not recognize such a claim. The Court agrees.
Plaintiff claims that the Ohio Supreme Court recognized a false light theory of recovery in Sustin v. Fee, 69 Ohio St.2d 143 (1982), a case concerning a claim of wrongful intrusion into a person's seclusion. In Sustin, the court quoted a portion of the Restatement of Torts 2d which references false light as one of four branches of invasion of privacy, however, that case did not include a false light claim, nor did the court state that it was adopting false light as a theory of recovery. Indeed, in the subsequent case Yeager v. Local Union 20, 6 Ohio St.3d 369, 370 (1983), the court explicitly stated, "[T]his court has not recognized a cause of action for invasion of privacy under a `false light' theory of recovery." See also, Angelotta v. American Broadcasting Corp., 820 F.2d 806 (6th Cir. 1987) (finding that Ohio law does not recognize a false light cause of action); Lusby v. Cincinnati Monthly Publishing Corp., No. 89-3854, 904 F.2d 707, 1990 WL 75242, unpublished table decision (6th Cir. June 6, 1990) (affirming summary judgment on false light claim because there is no such claim under Ohio law). Plaintiff is unable to point to any more recent Ohio Supreme Court decision that would suggest a departure from this position. Consequently, Defendant is entitled to judgment as a matter of law on Plaintiff's false light claim.
C. Defamation
Plaintiff contends that the subject article is defamatory per se. Defendant argues that as a matter of law, the article is not defamatory. The Court agrees with Defendant.
"Defamation is `a false and malicious publication against an individual made with an intent to injure his reputation or to expose him to public hatred, contempt, ridicule, shame, or disgrace or to affect him injuriously in his trade, business or profession.'" Ferrari v. Plain Dealer Publishing Co., 142 Ohio App.3d 629, 641 (2001) (quoting Robb v. Lincoln Publishing (Ohio), Inc., 114 Ohio App.3d 595, 616 (1996)). When the words of a publication are unambiguous, the question of whether a statement is defamatory is an issue of law for the court to decide after reviewing the statement under the totality of the circumstances. See, e.g., Ferrari v. Plain Dealer Publishing, Co., 142 Ohio App.3d at 641-42.
When defamation concerns written as opposed to spoken words, it is known as libel. In order to order to survive summary judgment on a libel claim, a plaintiff must establish each of the following elements: (1) the defendant made a false statement of fact concerning the plaintiff; (2) the statement was defamatory; (3) the statement was written; (4) the statement was published; and (5) in publishing the statement, the defendant acted with the requisite degree of fault. Sethi v. WFMJ Television, 134 Ohio App.3d 796, 803 (1999). Ohio courts have recognized two types of libel — libel per se and libel per quod. "`Libel per se means libel of itself, or upon the face of a publication, whereas libel per quod is libel by an interpretation, through an innuendo, between an innocent and harmless meaning and a libelous one.'" Becker v. Toulmin, 165 Ohio St. 549, 556 (1956). If the words of a publication are not ambiguous or uncertain as to definition, it is for the Court to decide whether they constitute libel per se. Id. at 555.
Plaintiff contends that the subject article is defamatory per se. Defendant maintains that, at best, the article is defamatory per quod. The Court agrees with Defendant's assessment. The article is not libelous per se because there is absolutely no mention of Plaintiff in the article. See, e.g., Regional Imaging Consultants Corp. v. Computer Billing Serv. Inc., No. 00 CA 79, 2001 WL 1539261, *9, unpublished (Ohio Ct. App. Nov. 30, 2001) ("The allegedly defamatory statement made by Appellees does not, on its face, make any reference to Appellants. Therefore, the statement cannot be libel per se."). Indeed, the only negative statements in the article concern the actions of the bank, not Plaintiff or any other security company. Even if the article did imply that Plaintiff terminated Longcoy, it would not render the article libelous per se. See, e.g., Becker v. Toulmin, 165 Ohio St. at 556 (publications that did not themselves proclaim that plaintiff had been discharged for lack of professional competence were not libelous per se even though a reasonable reader might infer that this was the case).
Because the article in question is not libelous per se, the only way for Plaintiff to pursue its defamation claim would be to do so under the theory of libel per quod. In order to make such a claim, however, a plaintiff must plead and prove special damages. See, e.g., Id. (libel per quod action requires proof of special damages); McGee v. Simon Schuster, Inc., 154 F. Supp.2d 1308, 1315 (S.D. Ohio 2001) ("In order to state a claim for libel per quod in Ohio, the plaintiff must allege special damages."). "Special damages are damages beyond a stained reputation; they are `those direct financial losses resulting from plaintiffs impaired reputation.'" McGee v. Simon Schuster, 154 F. Supp.2d at 1315 (quoting Hampton v. Dispatch Printing Co., No 87-AP-1084, 1988 WL 96227, *2 (Ohio Ct.App. Sept. 13, 1988)). To plead special damages, a plaintiff must allege "particular contracts, sales, customers, patients, or clients lost . . . ." Moore v. P.W. Publishing Co., 3 Ohio St.2d 183, 190 (1965).
In this case, Plaintiff has neither pled special damages nor offered any proof that it sustained such damages as the result of the article. The only evidence of damages submitted by Plaintiff are: (1) an affidavit from the company's president, William Fink, stating that it had received ten angry email messages after publication of the article but that those messages "no longer exist and cannot be retrieved"; and (2) an affidavit from Margaret Jackson, the manager of Goodman's Ashland Oil, stating that after reading the article she initially developed an unfavorable opinion of Mid-American, but that her favorable opinion of the company was restored five days later when a Mid-American employee explained that Mid-American had not fired Longcoy. (ECF No. 10, Exs. B and C). There is absolutely no evidence that any customer terminated a contract with Plaintiff or that Plaintiff suffered any other actual loss of business as a result of the article. For this reason, Plaintiff cannot sustain a claim for defamation per quod.
Even if Plaintiff were able to establish special damages, it still would not be able to sustain its defamation claim. A review of the subject article reveals that the article is not about any security company, but is instead about the Charter One Bank's treatment of Longcoy. Indeed, the article specifically states that it was the bank that gave Longcoy a pink slip. There is no reference anywhere in the article to an action by a security company that negatively affected Longcoy. The only connection between Plaintiff and the article is the patch that appears on Longcoy's sleeve in a photo accompanying the article. The Court finds that, under the totality of the circumstances, the subject article is not defamatory because it includes no false statement of fact of or about Plaintiff See, e.g., Cline-Watkins v. Johnson Publishing Co., 26 Med. L. Rptr. 1986, 1987-88 (D.D.C. 1998) (holding that photo of Bureau of Printing and Engraving employee operating money processing machine accompanying article on missing batches of money was not defamatory to the employee because text of article never mentioned the employee's name or suggested that she had been accused or suspected of a crime).
Nor would Plaintiff's claim be able to survive Ohio's innocent construction rule. "The `innocent construction' rule provides that if a statement is `susceptible to two meanings, one defamatory and one innocent, the defamatory meaning should be rejected and the innocent meaning adopted.'" Sethi v. WFMJ Television, Inc., 134 Ohio App.3d 796, 807 (1999) (quoting Yeager v. Local Union 20 Teamsters, 6 Ohio St.3d 369, 372 (1983)). The innocent construction rule applies even if the more obvious meaning of a statement is defamatory. New Olde Village, Inc. v. Outlet Communications, Inc., No. 98-4407, 202 F.3d 269, 2000 WL 64942, * 4, unpublished table decision (6th Cir. Jan 14, 2000) (applying Ohio law). "So long as the statement may reasonably be read to have an innocent meaning, the innocent construction rule commands that the statement be deemed non-defamatory." Id.
Although Plaintiff believes that a reasonable reader of the article would believe that Mid-American fired Longcoy, the article is capable of other non-defamatory interpretations. For instance, a reader might come away from the article believing that the security company did not fire Longcoy, but that it simply does not have as much work to give him without the bank contract. This interpretation is supported by Longcoy's statement that he has no choice "but to take every little job I can get." Another possible interpretation is that the bank fired Longcoy and that the security company had to let him go because that was the only job that it had for him. Because the article is capable of these non-defamatory interpretations, the innocent construction rule mandates that the article be deemed non-defamatory.
D. Injurious Falsehood
Plaintiffs claim for injurious falsehood is also without merit. "The cause of action for injurious falsehood is to protect the economic interests of the injured party against pecuniary loss and it arises as an action for special damage resulting from the publication." A B-Abell Elevator Co., Inc. v. Columbus/Central Ohio Building and Construction Trades, Nos. 92 AP- 1540, 92AP-1541, 1993 WL 387179, **14 (Sept. 30, 1993), aff'd in part and rev'd in part, 73 Ohio St.3d 1 (1995); see also, Restatement of Law 2d, Torts (1977), § 623A, Comment g. Damages for a claim of injurious falsehood are limited to "pecuniary loss that results directly and immediately from the effect the injurious falsehood had in influencing the conduct of third persons." Id. at ** 15 (citing Restatement of Law 2d, Torts (1977), § 623A, Comment i)). In order for a plaintiff to recover pecuniary loss for an injurious falsehood claim, "it must be established that some person was substantially influenced by the publication of the disparaging words that he refused to make a purchase he would have made." Id. (citing Restatement of Law 2d, Torts (1977), § 623A, Comment g).
As noted above, the only evidence that Plaintiff has submitted regarding the harm that it suffered as a result of the article are the affidavits of William Fink and Margaret Jackson. Neither affidavit indicates that Plaintiff incurred a pecuniary loss as a result of the article. Because there is no evidence that it suffered pecuniary harm, Plaintiff cannot sustain its injurious falsehood claim.
III. CONCLUSION
For the reasons stated above, the Court finds that there are no genuine issues of material fact and that Defendant is entitled to judgment as a matter of law as to each of Plaintiff's claims. Accordingly, Defendant's Motion to Dismiss (ECF No. 6), which has been converted to a motion for summary judgment, is hereby GRANTED.
IT IS SO ORDERED.