ORDER
THIS CAUSE came before the Court upon Defendant, Judicial Watch, Inc.’s (“Judicial Watch[’s]”) Motion for Summary Judgment ... (“Motion”) [ECF No. 83], filed with a Statement of Material Facts ... (“Defendant’s SF”) [ECF No. 81] on February 28, 2014. Plaintiff, Larry Klay-man (“Klayman”), filed his Opposition to Defendant’s Motion for Summary Judg
I. BACKGROUND
This case arises out of a claim for defamation, as well as three related claims, brought by Klayman, an attorney licensed in Florida, against Judicial Watch, the only Defendant remaining in the action. (See Amended Complaint ¶¶ 12-20 [ECF No. 5]; September 5, 2013 Order 21 [ECF No. 36]). Klаyman alleges the defamatory statement at issue inaccurately characterized legal proceedings regarding Klay-man’s failure to pay child support. (See generally Am. Compl.).
On January 24, 2012, Klayman was indicted in Ohio county court on two counts of criminal nonsupport for failure to pay child support from September 25, 2009 to September 24, 2011. (See Def.’s SF, Ex. 6, 1-3 [ECF No. 81-7]). Klayman had previously been found in contempt of court on multiple occasions for failing to pay child support and alimony. (See Def.’s SF, Ex. 7 [ECF No. 81-8]; Def.’s SF, Ex. 8 [ECF No. 81-9]; Videotaped Deposition of Larry Elliot Klayman, Esquire (“Klayman Deposition”) 46:7-11 [ECF No. 79-1]). As a result, capias arrest warrants were issued in March 2010 and October 2011. (See Klayman Dep. 45:10-24). Klayman made the strategic decision to be held in contempt to permit him to raise issues on appeal. (See Def.’s SF ¶ 25; Pl.’s SF ¶ 25; Klayman Dep. 43:5-10). On April 20, 2012, the Ohio county court entered an agreed judgment establishing Klayman had satisfied all monthly child support payments owed through April 30, 2012, withdrawing the capias arrest warrant issued against Klayman on October 13, 2011, and dismissing the indictment. (See Def.’s SF, Ex. 1-A, Attach. B [ECF No. 81-1]; Def.’s SF ¶ 26; Pl.’s SF ¶ 26). Klayman was not convicted of nonpayment of child support. (See Def.’s SF ¶ 14; Pl.’s SF ¶ 14).
Earlier, in 1994, Klayman founded the public interest group Judicial Watch, to serve as a government corruption watchdog. (See Affidavit of Larry Klayman (“Klayman Affidavit”) ¶ 4 [ECF No. 89-3]). Klayman left Judicial Watch in 2003 to run for a U.S. Senate seat in Florida. (See id,.). Klayman has been involved in high-profile litigation, including lawsuits brought against the Clinton, Bush, and Obama administrations (see id. ¶¶ 6, 9-10; Def.’s SF ¶ 3; PL’s SF ¶ 3), advocating for the Cuban community in Miami and representing the family of “Elian Gonzales [sic]” (Klayman Aff. ¶ 7), as well as representing families of U.S. forces that fought in Afghanistan (see id. ¶ 8).
In 2013, ABC News published an online profile of Klayman, highlighting his accomplishments and discussing his case against the NSA and Obama administration. (See id. ¶¶ 9-10; Def.’s SF, Ex. 1-A, Attach. A [ECF No. 81-1]). Klayman believes “a semi-fictitious character” on the TV series ‘West Wing” — “Harry Klaypool of Freedom Watch” — was created after him. (Def.’s SF ¶ 4; see also PL’s SF ¶4). Klayman is also the founder of Freedom Watch, another public interest group that fights government corruption, and he serves as the organization’s chairman and general counsel. (See Klayman Aff. ¶ 5).
On February 22, 2012, Judicial Watch Office Administrator Constance Ruffiey (“Ruffley”) attended a California Coalition for Immigration Reform (“CCIR”) meeting
Ruffley admits that during her conversation with Taitz she conveyed information about Klayman she had researched and learned from the public record, “including information related to court proceedings for failure to pay child support.” (Ruffley Decl. ¶¶ 7, 9; see also Deposition of Constance S. Ruffley (“Ruffley Deposition”) 32:15-16 [ECF No. 80-1]). According to Taitz, Ruffley stated, “Larry Klayman is not licensed in California, ... that he no longer works with [ ] Judicial Wateh[,] and that donors should know about litigation in Ohio, where [Klayman] was convicted just recently] of not paying large amount[s] in child support.” (Affidavit of Orly Taitz (“Taitz Affidavit”) ¶3 [ECF No. 97-1] (alterations added)).
Ruffley insists she does not recall whether she said Klayman was indicted or convicted of failing to pay child support (see Ruffley Deck ¶ 7; Ruffley Dep. 25:24-26:13), and she did not tell Taitz the information regarding Klayman’s failure to pay child support in Ohio should be provided to donors (see Ruffley Dep. 26:14-27:2). Ruffley maintains she believed her conversation with Taitz was private, she had no expectation her comments would bе published, and she did not give Taitz permission to publish them. (See Ruffley Decl. ¶ 8; Ruffley Dep. 32:18-21). Ruffley also states Judicial Watch employees did not advise or instruct her to convey any information about Klayman to Taitz. (See Ruffley Decl. ¶ 9).
Nevertheless, based on the conversation with Ruffley, Taitz published comments about Klayman on her website on February 23, 2012. (See Resp. Ex. 1 — “Feb. 23, 2012 Posting” 1-2 [ECF No. 89-1]). The posting accuses Klayman of being convicted of failing to pay child support, stating: “donors should know about litigation in Ohio, where he was convicted just recently [sic] of not paying large amount [sic] in child support.” (Id. 2). Taitz also notes she “will publish only, [sic] what is a public record. I am not publishing anything, [sic] that is not in [sic] public record.” (Id.). The posting then provides more detailed information regarding Klayman’s legal proceeding, noting Klayman had been indicted:
Larry Klayman, 60, of Los Angeles, California, was indicted on two (2) counts of criminal non-support. He owes $78,861.76 for his two children ages 11 and 14. Two hearings were held in Domestic Relations Court between 2009 and 2010. The last voluntary payment was made on August 30, 2011, in the amount of $1,014.26. Arraignment is scheduled for February 7, 2012.
(Id.). The posting also includes a link for additional information, (see id.).
On February 26, 2012, Taitz published a correction to the earlier post:
I read the first post I made in regards to Mr. Klayman and I saw that indeed there was an error. I wrote, [sic] that Ms. Ruffley stated that Mr. Klayman was just recently convicted of non payment of child support. The link and the article right under it stated, that he was indicted in [sic] 2 counts of criminal nonsupport, that he owes $78,861.76 and arrignment [sic] was scheduled for February 7, 2012. So, there was an error. Mr. Klayman was indicted in the state of Ohio on two counts of criminal non-support, but he was not convicted yet. I*1246 am mаking this correction. Ms. Ruffley made an error. It was also self evident in the February 23, 2012 article, as I posted the link right underneath and the link stated, [sic] that he was indicted and arrignement [sic] scheduled. The article was published just a couple of days ago, on February 23, 2012 and I corrected it today, February 26, 2012.
(Resp. Ex. 2. — -“Feb. 26, 2012 Posting” 3-4 [ECF No. 89-2] (emphasis in original)).
Klayman’s Amended Complaint brings four claims against Judicial Watch: defamation (Count I); defamation by implication (Count II); tortious interference with a contract (Count III); and intentional infliction of emotional distress (Count IV). (See Am. Compl. 6-10). Judicial Watch moves for final summary judgment on all counts. (See generally Mot.).
II. LEGAL STANDARD
Summary judgment may only be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a), (с). “[T]he court must view all evidence and make all reasonable inferences in favor of the party opposing summary judgment.” Chapman v. AI Transport,
III. ANALYSIS
Judicial Watch argues summary judgment against Klayman is appropriate as he has not presented sufficient evidence
A. Defamation (Count I)
In Count I, Klayman brings a claim for defamation per se, or in the alternative, for defamation. Klayman argues Judicial Watch is liable for the defamatory statement made by Ruffley and republished by Taitz. (See generally Resp.). In particular, Klayman asserts Ruffley’s false statement — that Klayman was convicted, rather than indicted, for failing to pay child support and this information should be shared with donors — is per se defamatory. (See id. 5-7). Klay-man contends the statement qualifies as defamation per se because it (1) accuses Klayman of committing a crime that may constitute a felony, or (2) it impugns his trade and profession. (See id.). Per se defamatory statements are “so obviously defamatory” and “damaging to [one’s] reputation” that they “give[ ] rise to an absolute presumption both of malice and damage.” Wolfson v. Kirk,
A claim for defamation per se may proceed under a theory of libel per se or slander per se depending on the facts of the case.
without a showing of special damage [ ] if it imputes to аnother (a) a criminal offense amounting to a felony, or (b) a presently existing venereal or other loathsome and communicable disease, or (c) conduct, characteristics, or a condition incompatible with the proper exercise of his lawful business, trade, profession, or office, or (d) the other being a woman, acts of unehasti[t]y.
Campbell,
Nothing included in the online publication suggests the offense of nonpayment of child support amounts to a felony, as the posting does not list any aggravating factors indicative of a felony or otherwise characterize the offense as a felony. Without more, the publication lacks sufficient detail for a reader to conclude the crime involved is a felony. See Scobie v. Taylor, No. 13-60457-CIV,
Klayman contends the defamatory statement is also defamation per se under
Per se defamatory statements must impute conduct to plaintiffs “incompatible with the essential functions of their respective jobs.” Scobie,
[T]he plaintiff was accused of being drunk on the job and that accusation was repeated to his manager and other employees ...; patients were told that a doctor’s work quality was poor and that his procedures required subsequent corrective work, which impugned the doctor’s professional competence and fitness as a surgeon ...; a former supervisor told a prospective employer that an interviewee was “bad news,” that she was prone to file frivolous sexual harassment charges, and that “you don’t want her in your company,” all of which suggested conduct incompatible with the proper exercise of her employment duties ...; a lawyer stated that “if you wanted to influence Judge Hoch, you should send men in tight shorts before him,” thereby suggesting that the judge’s official duties could be improperly influenced and imputing to him conduct or a condition incompatible with the proper exercise of his judgeship....
Id. (alteration added; internal citations omitted); see also Drennen v. Westinghouse Elec. Corp.,
To find defamation per se under this second theory, a court must first determine whether the statement is capable of a defamatory meaning. See Ragano v. Time, Inc.,
A person reading the statement at issue could reasonably understand it to implicate Klayman’s moral character and professional code of ethics. See Belli
Whether the statement actually impugns Klayman’s trade or profession as an attorney, thereby constituting defamation per se, is a matter for the jury. See Belli
As an alternative to defamation per se, Klayman argues he has provided sufficient proof for a traditional claim of defamation to survive summary judgment. (See Resp. 7-14). Judicial Watch asserts summary judgment is appropriate on Klayman’s traditiоnal defamation claim because the statement at issue is substantially true. (See Mot. 11-16; Reply 5-7).
To establish a cause of action for defamation, a plaintiff must show: “(1) publication; (2) falsity; (3) the actor acted with knowledge or reckless disregard as to the falsity on a matter concerning a public official, or at least negligently on a matter concerning a private person; (4) actual damages; and (5) the statement is defamatory.” Five for Entm’t S.A. v. Rodriguez, No. 11-24142-CIV,
Judicial Watch challenges the first element required to show defamation on the basis it was not responsible for publishing the statement. (See Mot. 9). In particular, Judicial Watch contends: Klayman lacks proof Ruffley uttered a false statement (see id. 8-9); a third party other than Ruffley republished the statement online (see id. 9); and Judicial Watch did not authorize Ruffley or Taitz to publish the statement (see id. 1; Reply 1, 3).
The publication of a statement in a defamation claim only requires the dissemination of a false statement to a person other than the defamed person. See Doe v. Am. Online, Inc.,
Here, the parties have stipulated Taitz and Ruffley spoke about Klayman’s failure to pay child support on February 22, 2012. {See Def.’s SF ¶ 11; Pl.’s SF ¶ 11). Ruff-ley cannot recall whether she stated Klay-man was convicted of or indicted for the crime. (See Ruffley Dep. 25:24-26:13; Ruffley Decl. ¶ 7). Klayman submits Taitz’s website posting from February 23, 2012 and her affidavit as circumstantial evidence Ruffley used the term convicted. {See Feb. 23, 2012 Posting; Taitz Aff. ¶ 3). Whether Ruffley actually made the statement referenced in Taitz’s online posting is a triable issue of fact.
Regarding Taitz’s republication of the statement, Judiсial Watch asserts Ruffley cannot be liable for the republication unless republication was reasonably foreseeable. {See Mot. 10-11).. Klayman’s Response is silent as to this argument. Klayman only generally contends the publication element was satisfied when Ruff-ley initially made the statement to Taitz. {See Resp. 8). Even if Ruffley’s statement to Taitz satisfies the publication element, Klayman must show Ruffley is liable for republication to recover the full extent of damages he seeks based on the online post.
Judicial Watch cites one case for the proposition a defendant may be liable for defamation if the republication by a third party was “reasonably foreseeable.” Granda-Centeno v. Lara,
While this jurisdiction does not appear to have applied the reasonably foreseeable standard since it was noted in Grandar-Centeno, other circuit courts have recognized liability for republication by a third party under certain circumstances. See Tavoulareas v. Piro,
Next, Klayman must demonstrate Judicial Watch, as Ruffley’s employеr, is vicariously liable for the publication and/or republication. A trier of fact may reasonably find Judicial Watch is vicariously liable for defamation under an agency theory of liability. See Thompson v. Orange Lake Country Club, Inc.,
Klayman asserts he has established the second element — falsity—as the statement at issue is false. (See Resp. 8; Klayman Aff. ¶¶ 18-22). The statement accused Klayman of being convicted of a crime despite public records indicating he was merely indicted. It is evident Klayman has not been convicted of a crime for failing to pay child support. The choice of words used is sufficient to support Klay-man’s burden of showing the statement is false.
As to the third element, Klayman must prove the defamatory statement was published with actual malice — “with knowledge that it was false or with reckless disregard of whether it was false or not.” Silvester v. Am. Broad. Cos., Inc.,
Regarding the fourth element of a defamation claim, Klayman asserts he has suffered actual damages. (See Resp. 8-9). Klayman relies on his virtues and honesty as an attorney and maintains his reputation impacts the number of clients who seek his legal advice and representation. (See Klayman Aff. ¶ 11). “[EJvidence of some actual injury,” such as injury to reputation, personal humiliation, and mental anguish and suffering, is required for a plaintiff to recover for defamation. Miami Herald Publ’g Co. v. Ane,
As “it is often difficult for a plaintiff to prove actual damages,” courts and juries-have historically presumed some level of damage from defamatory publications. Krauser v. Evollution IP Holdings, Inc., No. 12-80977-CIV,
Regarding the fifth element, Klayman must show the statement was defamatory. The meaning of the verb convicted is distinct from indicted: the former connotes a final adjudication, wherein a person is judged guilty of a crime; while the latter signifies a formal written accusation of a crime made by a grand jury, wherein the person has not yet' been proven guilty but is presumed innocent. Cf. BlaCK’S Law DICTIONARY (9th ed. 2009) (definitions for “conviction” and “indictment”). (See also Resp. 10). As discussed, accusing a person of being convicted of a crime when he was not may be defamatory. Klayman has presented triable issues of fact as to all of the elements оf his defamation claim.
Judicial Watch asserts as an affirmative defense the defamatory publication, taken as a whole, is substantially true. (See Mot. 11-16; Reply 5-7). “A false statement of fact is the sine qua non for recovery in a defamation action.” Byrd v. Hustler Magazine, Inc.,
In the online post, the discussion refers to Klayman’s indictment on two counts of criminal non-support, the amount of child support owed, the amount of Klayman’s most recent payment, and the date of his future arraignment. (See Feb. 23, 2012 Posting). From the additional information directly following the statement Klayman was convicted of failing to pay child support, a trier of fact may or may not conclude the publication taken as a whole is substantially true. In other words, while the statement Klayman was “convicted,” as written on Taitz’s website, is technically false, whether the falsity is negated because the online posting taken as a whole is substantially true is an issue for the jury. See, e.g., Jews For Jesus, Inc.,
Because the trier of fact must consider the context of the publication in determining whether the gist or sting associated with it differs from the actual truth, the Court cannot grant summary judgment in favor of Defendant on its affirmative defense. Cf. Fidelity Warranty Servs., Inc. v. Firstate Ins. Holdings, Inc.,
B. Defamation by Implication (Count II)
In Count II, Klayman argues Judicial Watch is liable for defamation by implication. Klayman asserts Ruffley selectively included false facts and omitted certain facts to portray Klayman was convicted of a crime when he had not been convicted. (See Resp. 14 & n. 4). Judicial Watch argues Count II is precluded under the single publication/single action rule and the First Amendment (see Mot. 18), and is negated by Judicial Watch’s substantial truth affirmative defense (see id. 19). Judicial Watch further argues Klay-man cannot satisfy the elements of defamation by implication because he has failed to prove actual malice. (See id.). Klayman’s claim of defamation by implication fails for other reasons.
“Defamation by implication arises, not from what is stated, but from what is implied when a defendant (1) juxtaposes a series of facts so as to imply a defamatory connection between them, or (2) creates a defamatory implication by omitting facts.... ” Jews For Jesus, Inc.,
The defamatory statement Klayman complains of does not fit squarely into either of the aforementioned categories of defamation by implication. It is not a series of “literally true statements [that] are conveyed in such a way as to create a false impression,” nor does the statement impute a defamatory characterization simply by omitting true facts. Id. (alteration added). Rather, the statement incorrectly uses the verb convicted in place of indicted. Klayman acknowledges the statement — he was convicted of failing to pay child support — is actually false. (See Resp. 14 n. 4) (“Defendant simply chose to pick and choose bogus facts ...;” “Defendant ignored readily available public documents evidencing the falsity of Defendant’s аccusations that Plaintiff had not been convicted of a crime and, instead, willfully falsified facts .... ” (alterations added)).
At issue is a statement that may be defamatory because it is false, not a factually true one that creates a false impression. See Jews For Jesus, Inc.,
C. Tortious Interference with a Contract (Count III) and Intentional Infliction of Emotional Distress (Count IY)
Klayman asserts claims for tor-tious interference with a contract in Count III and intentional infliction of emotional distress in Count IV. (See Resp. 23-24). Judicial Watch argues Florida’s single publication/single action rule (“single action rule”) bars these claims for relief. (See Mot. 16-17). Klayman urges the application of the single action rule is premature if his defamation claim survives summary judgment because the related tort counts depend on the success of his defamation claim. (See Resp. 19). Although Klayman’s defamation clаim survives summary judgment, the question remains whether the single action rule bars Klay-man’s related tort claims in Counts III and IV.
In Count III, Klayman asserts Judicial Watch tortiously interfered with one of his business contracts with a client he represents in a high-profile lawsuit in Florida. (See id. 23-24, 24 n. 6). A claim for tortious interference with a contract or business relationship. requires proof of: “(1) the existence of a business relationship ... under which the plaintiff has legal rights; (2) the defendant’s knowledge of the relationship; (3) an intentional and unjustified interference with the relationship by the defendant; and (4) damage to the plaintiff as a result of the interference.” Salit v. Ruden, McClosky, Smith, Schuster & Russell, P.A.,
(1) [t]he wrongdоer’s conduct was intentional or reckless, that is, he intended his behavior when he knew or should have known that emotional distress would likely result; (2) [t]he conduct was outrageous, that is, as to go beyond all bounds of decency, and to be regarded as odious and utterly intolerable in a civilized community; (3) [t]he conduct caused emotional distress; and (4) [t]he emotional distress was severe.
Stewart v. Walker,
Notwithstanding that Klayman may have presented sufficient facts to satisfy each of the claims’ elements, Judicial Watch maintains the claims are barred by the single action rule. “In Florida, a single publication gives rise to a single cause of action.” Callaway Land & Cattle Co. v. Banyon Lakes C. Corp.,
When claims are based on analogous underlying facts and the causes of аction are intended to compensate for the same alleged harm, a plaintiff may not proceed on multiple counts for what is essentially the same defamatory publication or event. See Kamau v. Slate, No. 4:11cv522-RH/CAS,
The “outrageous conduct” alleged here is defamation, which gives rise to various elements of damage, including personal humiliation, mental anguish and suffering.... In other words, the allegations of this count describe the tort of libel while characterizing it as “outrageous conduct.” As such, it is merely an imperfect repetition of Count I. Therefore, Count II [intentional infliction of emotional distress] was properly dismissed ....
Id. (alterations added; internal citation omitted).
Recovery for separate causes of action is proper when they “are properly pled upon
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED AND ADJUDGED that Defendant’s Motion [ECF No. 83] is GRANTED in part and DENIED in part. Trial will proceed on the claim stated in Count I only.
Notes
. The Court applies Florida law after concluding in its September 5, 2013 Order,
The initial publication by Ruffley and Taitz’s republication occurred in California, but once published online, the allegedly defamatory statement was readily available worldwide. The parties have ties to Florida: Judicial Watch has an office in Miami, Florida and conducts business in Florida; and Klayman lives in Ocala, Florida, is licensed to practice law in Florida, and has a Florida driver’s license and Florida concealed weapons permit. (See September 5, 2013 Order 6-7). Klayman also argues the defamatory statement was directed at Florida readers since he planned to file a high profile lawsuit in Florida in 2012, and as a result, he suffered injury in Florida. (See Resp. 7; Klayman Aff. ¶ 23). Florida law is appropriate as the statement published on Taitz’s website constitutes an electronic communication into Florida where the online material is accessed by readers in Florida, and the content of the statement cоncerns a Florida resident. See Internet Solutions Corp. v. Marshall,
. "Defamation encompasses both libel and slander.... Slander is ordinarily confined to defamatory spoken words, whereas libel pertains to defamatory written statements.” Fortson v. Colangelo,
. Any difference between a criminal offense amounting to a felony (required for slander per se) and an infamous crime (required for libel per se) is not relevant to this case. The reference to an “infamous crime” appears in
. Judicial Watch argues the website publication is inadmissible hearsay and cannot be considered on a motion for summary judgment. (See Mot. 9-10). The out-of-court statement does not constitute hearsay as it is not being offered for the truth of the matter asserted. See Fed. R. Evid. 801 advisory committee’s note (1972 amends. § (c)) ("If the significance of an offered statement lies solely in the fact that it was made, no issue is raised as to the truth of anything asserted, and the statement is not hearsay.” (citation omitted)).
. Klаyman also argues the defamatory statement affects his trade and profession because a "convicted attorney is subject to disbarment for a felony." (Resp. 7). As discussed, the statement does not mention or reasonably impute failure to pay child support is a felony. Klayman's argument is not only conclusory, but it requires a person reading the defamatory statement to consider extrinsic facts to infer Klayman is accused of a felony offense. See Scobie,
. Despite this definition, the parties' arguments regarding proof of actual malice center around whether Judicial Watch or Ruffley harbored animosity against Klayman. (See Resp. 9-14; Reply 7-9). This interpretation of the element as requiring a showing of ill will or hatred is largely misguided given the standard set forth in New York Times Co. and discussed in Silvester.