Yorie VON KAHL, Plaintiff, v. BUREAU OF NATIONAL AFFAIRS, INC., Defendant.
Civil Action No. 09-0635(RWR).
United States District Court, District of Columbia.
Sept. 13, 2011.
797 F. Supp. 2d 138
RICHARD W. ROBERTS, District Judge.
IV. CONCLUSION
For the reasons set forth above, the Court shall GRANT-IN-PART and DENY-IN-PART Defendants’ [18] Motion to Dismiss. Specifically, the motion shall be GRANTED insofar as Defendants seek dismissal of (a) Doe‘s claim for involuntary servitude under Sections 1584 and 1595 to the extent her claim is based on acts predating December 23, 2008, (b) Doe‘s claim for involuntary servitude under the Thirteenth Amendment, regardless of the dates of the underlying conduct, (c) Doe‘s claim for trafficking for purposes of forced labor under Sections 1590 and 1595 to the extent her claim is based on acts predating December 19, 2003, and (d) Doe‘s claim for forced labor under Sections 1589 and 1595 to the extent her claim is based on acts predating December 19, 2003. The motion shall otherwise be DENIED, including with respect to (a) Doe‘s claim for involuntary servitude under Sections 1584 and 1595 for conduct occurring between December 23, 2008 and August 7, 2009, (b) Doe‘s claim for trafficking for purposes of forced labor under Sections 1590 and 1595 to the extent her claim is based on conduct occurring between December 19, 2003 and August 7, 2009, and (c) Doe‘s claim for forced labor under Sections 1589 and 1595 to the extent her claim is based on conduct occurring between December 19, 2003 and August 7, 2009. Defendants shall serve and file their Answer to the First Amended Complaint by no later than September 28, 2011. An appropriate Order accompanies this Memorandum Opinion.
Deborah J. Israel, James William Gladstone, Womble Carlyle Sandridge & Rice, PLLC, Washington, DC, for Defendant.
RICHARD W. ROBERTS, District Judge.
Plaintiff Yorie Von Kahl brings this libel action against defendant Bureau of National Affairs, Inc. (“BNA“) alleging that BNA defamed him in summaries published about a petition he filed following his criminal prosecution. The parties have cross-moved for summary judgment. Because BNA‘s statements were not privileged and genuine material factual issues remain for jury resolution, both motions will be denied.
BACKGROUND
In 1983, plaintiff was with a group of people that included his father for whom an arrest warrant was outstanding. United States Marshals attempted to arrest the father. A shootout started and two marshals were killed. Plaintiff was indicted under
BNA publishes the Criminal Law Reporter (“CLR“), a section of which summarizes cases filed before the Supreme Court. On August 17, 2005, BNA published in the CLR the following portion of a summary concerning plaintiff‘s mandamus petition:
04-1717 In re Kahl
Homicide—Murder of U.S. marshals—Jury instructions—Sentencing
Ruling below (D.N.D., 6/24/83):
Petitioner, who showed no hint of contrition and made statements to press that he believed that murders of U.S. marshals in course of their duties were justified by religious and philosophical beliefs, is committed to custody of the U.S. Attorney General for imprisonment for life based on his convictions on two counts of violating
18 U.S.C. §§ 1111 ,1114 , and 2, terms to run concurrently; for 10-year term of imprisonment on each of four counts on which he was convicted of violating18 U.S.C. §§ 111[1] ,1114 , and 2, which terms will
Compl., Ex. 1 (CLR summary for Docket No. 04-1717, In re Kahl). The next paragraph of the summary sets forth the legal questions presented in the mandamus petition. Id. Plaintiff alleges that he “expressly ... denied any murder of U.S. Marshals in [the] course of their duties as reflected in the jury acquittals expressly finding [p]laintiff ‘Not Guilty’ ... and was seeking to compel enforcement of the jury‘s acquittals” through the mandamus petition. Compl. ¶ 9. According to plaintiff, the first sentence of the summary “contain[ed] numerous false facts all of which contextually were clearly libelous per se.” Id. ¶ 8.
On July 3, 2007, plaintiff sent a letter to Paul N. Wojcik, BNA‘s President, “identifying the false, falsely attributed and defamatory statements” in the published summary and “informing [him] of injuries caused to [p]laintiff thereby, and requesting a retraction and public apology with an explanation to include the true facts[.]” Id. ¶ 12. Plaintiff also sought “compensat[ion] ... for injuries caused by such publication.” Id. ¶ 13.
On July 18, 2007, BNA published “a purported ‘[c]larification,‘” id. ¶ 14 (brackets in original), which stated:
Clarification
In a Summaries of Recently Filed Cases entry that ran at 77 CrL 2127, concerning U.S. Supreme Court petition No. 04-1717, the summary of the sentencing judge‘s ruling should have begun: “Petitioner who was said to have believed that murders were justified,....”
Id., Ex. 2 (Clarification) (emphasis in original).
Plaintiff alleges that BNA published libelous statements that he: (1) “showed no hint of contrition;” (2) “made statements to press that he believed that murders of U.S. marshals in the course of their duties were justified” on the basis of “religious and philosophical beliefs;” and (3) is incarcerated “based on his convictions on two counts of violating
BNA has moved to dismiss the complaint or for summary judgment, arguing that its statements are protected by the fair reporting privilege.3 Plaintiff opposes
DISCUSSION
Summary Judgment Standard
Because the parties have presented, and the Court has considered, matters outside the pleadings, the Court treats the parties’ motions as cross-motions for summary judgment. See
In responding to a summary judgment motion, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citations omitted). Instead, while the moving party shoulders the initial responsibility of identifying those portions of the record that demonstrate the absence of a genuine issue of material fact, the burden shifts to the nonmovant to “come forward with specific facts showing that there is a genuine issue for trial.” Id. at 587, 106 S.Ct. 1348 (internal quotation marks and citation omitted) (emphasis in original). Although the court should draw all favorable inferences from the supporting materials submitted by the nonmoving party, the mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To be material, the factual assertion must be capable of affecting the substantive outcome of the litigation; to be genuine, the issue must be supported by sufficient evidence that a reasonable trier of fact could find for the nonmoving party. Laningham v. United States Navy, 813 F.2d 1236, 1242-43 (D.C.Cir.1987); see Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505 (stating that the court must determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law“).
Plaintiff‘s Motion
To state a claim of defamation under District of Columbia law, a plaintiff must allege:
(1) that the defendant made a false and defamatory statement concerning the plaintiff; (2) that the defendant published the statement without privilege to a third party; (3) that the defendant‘s fault in publishing the statement amounted to at least negligence; and (4) either that the statement was actionable as a matter of law irrespective of special harm or that its publication caused the plaintiff special harm.
Beeton v. District of Columbia, 779 A.2d 918, 923 (D.C.2001) (quoting Crowley v. N. Am. Telecomms. Assoc., 691 A.2d 1169, 1173 n. 2 (D.C.1997)) (quoting Prins v. Int‘l Tel. & Tel. Corp., 757 F.Supp. 87, 90
Plaintiff alleges, see generally Compl. ¶¶ 17-46, that the statement and clarification published in 2005 and 2007 issues of the CLR are defamatory. The 2005 statement as published presents plaintiff‘s supposed lack of contrition and religious and philosophical belief justifying the murder of federal marshals as if they were facts. Moreover, both the 2005 and 2007 statements refer to the subject sentencing remarks as rulings of the judge. However, whether these statements actually are defamatory is a question of fact that the Court cannot resolve on summary judgment.4 See Prins, 757 F.Supp. at 91 (denying summary judgment because the Court could “not preclude as a matter of law the possibility that a reasonable jury could find that the [employer‘s statement that plaintiff was fired] injured [him] in his business or reputation“). Plaintiff‘s motion for summary judgment on liability and damages will be denied.
BNA‘s Motion
Under District of Columbia law, “publications ... enjoy a conditional fair report privilege.” Dameron v. Wash. Magazine, Inc., 779 F.2d 736, 739 (D.C.Cir.1985) (citations omitted); Phillips v. Evening Star Newspaper Co., 424 A.2d 78, 87-88 (D.C.1980). This “conditional immunity ... applies to the publication of fair and accurate reports of official pro-
[D]efamatory matter concerning another in a report of any official proceeding or any meeting open to the public which deals with matters of public concern is published on a conditionally privileged occasion if the report is (a) accurate and complete, or a fair abridgement of what has occurred, and (b) published for the purpose of informing the public as to a matter of public concern.
Oparaugo v. Watts, 884 A.2d 63, 81 (D.C.2005) (quoting Phillips, 424 A.2d at 88). The fair report privilege extends to reports of judicial proceedings. See Shipkovitz v. Wash. Post Co., 571 F.Supp.2d 178, 183 (D.D.C.2008); Phillips, 424 A.2d at 88 (commenting that the fair report privilege “has been held applicable to reports of proceedings before any court, or agency of the court“). “The premise of the privilege is the interest of the public in obtaining information about what occurs in official proceedings and public meetings,” and therefore it is “only available to the media when their news reports are presented in such a manner that the average reader would be likely to understand the communication to be a report on—or summary of—an official document or proceeding.” White, 909 F.2d at 527 (citing Dameron, 779 F.2d at 739).
An excerpt of the transcript of the June 24, 1983 sentencing proceeding before Chief Judge Paul Benson of the United States District Court for the District of North Dakota is attached as an appendix to plaintiff‘s mandamus petition, see BNA Mem., Ex. A, and its first page beneath the case caption begins:
TRANSCRIPT
of
PROCEEDINGS
June 24, 1983
1:30 o‘clock P.M.
(Sentencing)
U.S. District Courthouse
[illegible] Federal Building
Fargo, North Dakota
BEFORE: CHIEF JUDGE PAUL BENSON
* * *
[illegible] sentence for each of these Defendants.
With regard to Yorie Von Kahl there is not even a hint of contrition. The man refused to even talk to the probation officer. We have statements at trial and those issued to the press and what-not that this man honestly believes that these murders, cold blooded calculated murders[,] were justified by some sort of a perverted religious philosophical belief which perhaps wasn‘t even his, perhaps it was simply that of his father‘s [sic]. This country is not safe for Yorie Von Kahl.
Id., Ex. A (App. 33-34).
BNA initially argued that, even if the CLR entry is defamatory, it is “essentially identical to the stated findings made by the North Dakota District Court in sentencing [p]laintiff,” and that “every single one of the statements about which [p]laintiff complains ... is drawn from the express rulings of the sentencing court.” BNA Mem. at 11 (emphasis in original). BNA reasoned that there can be no dispute as to whether its description of the sentencing court‘s ruling was accurate and complete, or a fair reading of the ruling, and therefore, the fair reporting privilege protects BNA. Id.
Plaintiff countered that statements BNA represented as a summary of the sentenc-
With regard to Yorie Von Kahl there is not even a hint of contrition. The man refused to even talk to the probation officer. We have statements at trial and those issued to the press and whatnot that this man honestly believes that these murders, cold blooded calculated murders[,] were justified by some sort of a perverted religious philosophical belief which perhaps wasn‘t even his, perhaps it was simply that of his father‘s [sic]. This country is not safe for Yorie Von Kahl.
Id., Ex. A at 24:1-10.5 Plaintiff maintains that the statements published in the CLR are drawn not from Chief Judge Benson‘s rulings but from the prosecutor‘s “rhetorical argument.” Pl.‘s Mem. at 15.
BNA modified its stance in its opposition to plaintiff‘s cross-motion, essentially abandoning its position that the summary is substantially identical to the sentencing judge‘s ruling. According to BNA, it need only demonstrate that its summary “provided an accurate and complete or a fair abridgement of the Petition, not whether the Petition itself accurately stated the underlying facts on which it is based.” Def.‘s Reply to Pl.‘s Opp‘n to Def.‘s Mot. to Dismiss or for Summ. J. at 4 (internal quotation marks omitted). It argued that “the fact that the information published [in the CLR] was consistent with statements of the prosecutor during [p]laintiff‘s sentencing hearing in no way diminishes [its] defense under the ‘fair reporting’ privilege.” Id. at 2. BNA represented that its failure to cite the prosecutor as the source of the allegedly libelous statements “is entirely understandable ... since the excerpt ... was, at best, unclear on this issue, and indeed, gave the impression that this information was part of the sentencing itself.” Id. at 6.
However unclear the petition‘s excerpt may have been about the source of the offending statements, BNA‘s summary and clarification are written as if the sentencing judge made findings or issued a ruling reflecting the offending comments, including that plaintiff “showed no hint of contrition” and that he harbored “religious and philosophical beliefs” which justified the murders of which he was convicted. Plaintiff demonstrates that the allegedly defamatory statements published by BNA in the 2005 edition of the CLR and referred to in the 2007 clarification are properly attributable to the prosecutor, as shown by the transcript of the June 24, 1983 sentencing hearing. It appears, then, that the judicial proceeding upon which BNA relies for its claim of privilege is not the mandamus petition but instead is the underlying criminal proceeding. BNA cannot avail itself of the fair report privilege simply by relying on the purported lack of clarity in attribution of the relevant statement in the mandamus petition‘s appendix. Neither BNA‘s published summary nor its clarification represents an accurate and complete report on or a fair abridgement of the mandamus petition itself, which the Court presumes without deciding is a matter of public concern.6
CONCLUSION AND ORDER
Whether BNA‘s published statements are defamatory is a contested factual question that must be resolved by a jury, not on a motion for summary judgment. Moreover, the published statements do not qualify for protection under the fair reporting privilege. Therefore, it is hereby
ORDERED that the parties’ cross-motions [Dkt. # 6, 22] are DENIED.
SO ORDERED.
RICHARD W. ROBERTS
UNITED STATES DISTRICT JUDGE