Green v. Mason
504 F. Supp. 3d 813
S.D. Ohio2020Background
- Plaintiff F. Harrison Green, a volunteer member of the Shriners Hospitals for Children — Cincinnati Board, alleges Defendants (Timothy Mason, Gary Bergenske, Jerry Gantt) made and/or circulated false statements that led to his removal from the Board.
- Green emailed a McKinsey consultant about a reorganization plan; shortly thereafter Mason allegedly criticized Green and then Gantt and Bergenske sent Green a removal letter citing bylaw violations and prohibiting him from Hospital grounds.
- Green sued in diversity court asserting negligent infliction of emotional distress, false light, slander, and (initially) retaliation and intentional infliction claims; he later dropped two counts in an amended complaint.
- Defendants moved to dismiss under Fed. R. Civ. P. 12(b)(6), arguing failure to plead actionable false statements, lack of publication, and that communications were protected by a common-interest (qualified) privilege.
- The Court granted Green leave to amend but treated the pending motions as directed at the Amended Complaint, held Ohio law governs, and dismissed the amended pleading with prejudice for failure to state claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether negligent infliction of emotional distress was plausibly alleged | Green: statements and removal caused humiliation, shock and put him in physical peril | Defs: plaintiff failed to allege witnessing of a real/impending danger to another or personal physical threat | Dismissed — fails element: no allegation of real/impending physical danger witnessed or to plaintiff |
| Whether slander/defamation pleaded (publication, falsity, defamatory character) | Green: Mason and others published false factual statements to third parties and records/public internet | Defs: communications fall within common-interest qualified privilege; many statements are non-falsifiable opinion or true; no actionable written publication or special damages | Dismissed as to Gantt/Bergenske (privilege; no plausible actual malice alleged); Mason plausibly alleged malice but statements were non-actionable (not defamation per se) and no special damages alleged for per quod |
| Whether false-light claim survives | Green: Defendants publicized false portrayals to >2,000 members and in records | Defs: communications were not publicizing to the public at large and are privileged internal communications | Dismissed — not plausibly publicized; false-light is essentially coextensive with defamation and fails here |
| Whether amendment was permissible or futile | Green: sought to clarify allegations and add facts showing malice and wider publication | Defs: amendment would be futile because pleading defects remained | Court granted leave to amend but found amended allegations still insufficient and dismissed with prejudice |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (federal plausibility pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading must include factual material to state a plausible claim)
- Foman v. Davis, 371 U.S. 178 (1962) (leave to amend should be freely given absent futility or other good reason)
- Hahn v. Kotten, 331 N.E.2d 713 (Ohio 1975) (qualified/common-interest privilege for communications made to protect a shared interest)
- Welling v. Weinfeld, 866 N.E.2d 1051 (Ohio 2007) (false-light invasion requires publicity and actual malice standard)
- Am. Chem. Soc. v. Leadscope, Inc., 978 N.E.2d 832 (Ohio 2012) (court decides as a matter of law whether alleged statements are defamatory)