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WYLANDA GALES, PATRICIA GAMBLE, DANIEL GLASS,
DOROTHY McGEE, JERRY SCOTT, JR., and CHARLES WESLEY, PLAINTIFFS
vs. CBS BROADCASTING, INC.; MEDIA GENERAL OPERATIONS, INC., d/b/a
WJTV; WYATT EMMERICH; BEAU STRITTMAN; DON HEWITT; MORLEY SAFER;
DEIDRE NAPHIN;JENNIFER BREHENY; and John Does 1-50, DEFENDANTS
CIVIL
ACTION NO. 5:03-cv-35(Br) (S)
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI, WESTERN DIVISION
269
F. Supp. 2d 772; 2003 U.S. Dist. LEXIS 11723
June 27, 2003,
Decided
DISPOSITION: Plaintiffs' motion to submit additional
evidence granted. Plaintiffs' motion to remand denied. Defendants
Wyatt Emmerich and Beau Strittman dismissed from this case with
prejudice.
COUNSEL: For WYLANDA GALES, PATRICIA GAMBLE, DANIEL GLASS,
DOROTHY MCGEE, JERRY SCOTT, SR., CHARLIE WESLEY, plaintiffs: Harry
Merritt McCumber, Christopher W. Cofer, COFER & ASSOCIATES,
P.A., Jackson, MS.
For CBS BROADCASTING INC., MEDIA GENERAL OPERATIONS,
INC., WYATT EMMERICH, DON HEWITT, MORLEY SAFER, DEIRDRE NAPHIN,
JENNIFER BREHENY, defendants: Robert O. Allen, ALLEN, ALLEN, BOERNER
& BREELAND, Brookhaven, MS.
For CBS BROADCASTING INC., MEDIA
GENERAL OPERATIONS, INC., WYATT EMMERICH, DON HEWITT, MORLEY SAFER,
DEIRDRE NAPHIN, JENNIFER BREHENY, defendants: Luther T. Munford,
John P. Sneed, Christopher R. Shaw, PHELPS DUNBAR, Jackson, MS.
For BEAU STRITTMAN, defendant: W. Wayne Drinkwater, Jr., Billy
Berryhill, BRADLEY, ARANT, ROSE & WHITE, LLP, Jackson, MS.
JUDGES: David Bramlette, UNITED STATES DISTRICT JUDGE.
OPINIONBY: David Bramlette
MEMORANDUM OPINION AND ORDER
This cause is before the Court on the plaintiffs' motion to remand
(docket entry 5), and on the plaintiffs' motion to submit additional
evidence, (docket entry 10-2). Having carefully considered the motions,
responses, memoranda, and all supporting documents, as well as the
applicable law, the Court finds as follows:
The complaint in this action was filed in the Circuit Court of
Jefferson County, Mississippi, on December 26, 2002, alleging causes
of action exclusively under state law. The complaint alleges that
defendant CBS Broadcasting, Inc. ("CBS"), is a foreign
corporation, n1 and that defendant Media General Operations, Inc.,
d/b/a WJTV ("Media General") is a foreign corporation.
n2 The complaint further alleges that defendants Morley Safer, Don
Hewitt, Deidre Naphin and Jennifer Breheny are not adult resident
citizens of Mississippi. n3 Defendants Wyatt Emmerich and Beau Strittman
are adult resident citizens of Mississippi, as are all six of the
plaintiffs. (Complaint, PP 1, 4-5).
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - -
- - -
n1 The defendants' notice of removal states that CBS Broadcasting,
Inc., is a corporation organized under the laws of the State of
New York, and has its principal place of business in New York.
n2 The notice of removal states that Media General Operations,
Inc., is a corporation organized under the laws of the State of
Delaware, and has its principal place of business in Virginia.
n3 The notice of removal states that defendants Safer, Hewitt,
Naphin and Breheny are all adult resident citizens of New York.
-
- - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
On January 22, 2003, the defendants removed the case to this
Court, on the basis of diversity jurisdiction under 28 U.S.C. §
1332. The federal removal statute permits defendants in a state
court action to remove the lawsuit to federal district court if
federal subject matter jurisdiction existed when the complaint was
initially filed. 28 U.S.C. § 1441(a); see Baris v. Sulpico Lines,
Inc., 932 F.2d 1540, 1546 (5th Cir. 1991). In other words, removal
of a case from state to federal court is proper if the case could
have been brought originally in federal court. Id. The defendants
contend that this Court has subject matter jurisdiction pursuant
to 28 U.S.C. § 1332. To support their claim of diversity jurisdiction,
the defendants must show that there is complete diversity of citizenship
between the plaintiffs and defendants, and that the amount in controversy,
exclusive of interest and costs, exceeds $ 75,000. 28 U.S.C. 1332(a).
It is undisputed that the amount in controversy requirement is met.
It is also undisputed that there is complete diversity between the
plaintiffs and defendants CBS, Media General, Safer, Hewitt, Naphin
and Breheny, but not between the plaintiffs and defendants Emmerich
and Strittman. Although the plaintiffs and defendants Emmerich and
Strittman are all residents of Mississippi, the defendants claim
that the Court can properly exercise diversity jurisdiction over
this matter because the plaintiffs fraudulently joined Emmerich
and Strittman to defeat the complete diversity requirement of 28
U.S.C. § 1332(a). The defendants maintain that the plaintiffs have
no cognizable claims against Emmerich and Strittman, and therefore,
that there is complete diversity of citizenship between the plaintiffs
and the remaining defendants. On February 21, 2003, the plaintiffs
filed their motion to remand, asserting that they did not fraudulently
join Emmerich and Strittman, and accordingly, that diversity jurisdiction
does not exist.
"The burden of proving that a plaintiff fraudulently joined
non-diverse defendants is heavy," and requires the removing
defendants to prove fraudulent joinder by clear and convincing evidence.
Green v. Amerada Hess Corp., 707 F.2d 201, 205 (5th Cir. 1983);
see also Jernigan v. Ashland Oil, 989 F.2d 812, 814 (5th Cir. 1993).
In order to establish fraudulent joinder, the removing parties must
demonstrate either that no possibility exists that the plaintiff
would be able to establish a cause of action against the non-diverse
defendant under state law, or that an outright fraud exists in the
plaintiffs' pleading of the facts. Id. In other words, the removing
defendants bear the responsibility of demonstrating by clear and
convincing evidence that the plaintiffs cannot establish any cause
of action against Emmerich and Strittman or, alternatively, that
the plaintiffs fraudulently pled the facts included in their complaint.
The Fifth Circuit has clearly described the procedure a district
court should follow in deciding the issue of fraudulent joinder:
The district court must ... evaluate all of the factual allegations
in the light most favorable to the plaintiff, resolving all contested
issues of substantive fact in favor of the plaintiff. Moreover,
the district court must resolve any uncertainties as to the
current state of controlling substantive law in favor of the
plaintiff.
If, having assumed all of the facts set forth by the plaintiff
to be true and having resolved all uncertainties as to state
substantive law against the defendants, the district court
should find that there is no possibility of a valid cause of
action being set forth against the in-state defendant(s), only
then can it be said that there has been a "fraudulent
joinder." However, if there is even a possibility that a state
court would find a cause of action stated against any one of the named
in-state defendants on the facts alleged by the plaintiff, then the
federal court must find that the in-state defendant(s) have been properly
joined, that there is incomplete diversity, and that the case must
be remanded to the state courts. B., Inc. v. Miller Brewing Co.,
663 F.2d 545, 549-50 (5th Cir. 1981).
"[A] joinder is fraudulent if the facts asserted with respect
to the resident defendant are shown to be so clearly false as to
demonstrate that no factual basis existed for any honest belief
on the part of the plaintiff that there was joint liability."
Bolivar v. R & H Oil & Gas Co., Inc., 789 F. Supp. 1374,
1376-77 (S.D. Miss. 1991). All ambiguities in the controlling law
of a state must be resolved in favor of the plaintiff. Carriere
v. Sears, Roebuck & Co., 893 F.2d 98, 100 (5th Cir. 1990). The
Fifth Circuit has made it abundantly clear, and the Court is mindful
of the fact, that the district court need "not decide whether
the plaintiff will actually or even probably prevail on the merits,
but look only for a possibility that he may do so." Dodson
v. Spiliada Maritime Corp., 951 F.2d at 42.
The fraudulent joinder and Rule 12(b)(6) standards appear similar.
Travis v. Irby, 326 F.3d 644, 648 (5th Cir. 2003). Under Rule 12(b)(6),
"the central issue is whether, in the light most favorable
to the plaintiff, the complaint states a valid claim for relief."
Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co.,
313 F.3d 305, 312 (5th Cir. 2002). Under the fraudulent joinder
standard, the test is whether there is a "possibility that
[the plaintiff] has set forth a valid cause of action." Green
v. Amerada Hess, 707 F.2d 201, 205 (5th Cir. 1983); Burden v. General
Dynamics Corp., 60 F.3d 213, 217 (5th Cir. 1995).
There is, however, a slight difference in the scope of inquiry
for Rule 12(b)(6) and fraudulent joinder purposes. "For Rule
12(b)(6) motions, a district court may only consider the allegations
in the complaint and any attachments ... For fraudulent joinder,
the district court may ... 'pierce the pleadings' and consider summary
judgment-type evidence in the record ...." Travis, 326 F.3d
at 648-49 (emphasis added) (citations omitted). The Fifth Circuit
has cautioned that the district court must still "take into
account all unchallenged factual allegations, including those alleged
in the complaint, in the light most favorable to the plaintiff."
Id. at 649 (citations omitted). "Any contested issues of fact
and any ambiguities of state law must be resolved in [the plaintiff's]
favor ... The burden of persuasion on those who claim fraudulent
joinder is a heavy one. Id. (citations omitted).
This case arises out of the television broadcast of "Jackpot
Justice," a segment of defendant CBS's "60 Minutes"
program which aired on November 24, 2002. The segment focused on
multi-million dollar verdicts rendered in rural areas of Mississippi,
particularly Jefferson County, and featured interviews with Wyatt
Emmerich, a newspaper publisher and columnist from Jackson, Mississippi,
and Beau Strittman, a florist from Fayette, Mississippi, the county
seat of Jefferson County.
The plaintiffs served together in 1999 as jurors in a "Fen
Phen" diet drug case in Jefferson County Circuit Court and
rendered a widely publicized 150 million dollar verdict. The plaintiffs'
complaint alleges that the "60 Minutes" program portrayed
Jefferson County "as a leading purveyor of the state's system
of 'jackpot justice,'" (Complaint, P 26) and that the defendants
"maliciously misconceived Jefferson County as a place where
substantial verdicts are awarded effortlessly and ostensibly without
an evidentiary basis." (Complaint, P 28). The complaint also
alleges that defendants Emmerich and Strittman maliciously made
"representations, statements and/or opinions pertaining to
the Jurors in [the "Fen Phen" case] and other cases, [which]
reasonably imply false and defamatory facts not predicated upon
disclosed, truthful facts known to Defendants." (Complaint,
PP 28-29). The plaintiffs allege causes of action for libel, slander
and defamation (count one); invasion of privacy (appropriation of
another's identity for an unpermitted use) (count two); invasion
of privacy (holding another to the public eye in a false light)(count
three); gross negligence or intentional infliction of emotional
distress (count four); malicious, reckless, wantonness, negligence
or gross negligence (count five); and declaratory, equitable and/or
injunctive relief (count six).
The issue before the Court is whether a possibility exists that
the plaintiffs would be able to establish a cause of action against
either Emmerich or Strittman under any of the claims alleged in
their complaint.
I. DEFAMATION (Count One)
To establish a claim of defamation, the plaintiffs must prove
the following:
(1) a false and defamatory statement was made concerning the
plaintiff;
(2) there was an unprivileged publication to a third
party;
(3) the publisher was negligent in publishing the defamatory statement;
(4) the plaintiff suffered damages resulting from publication
of the defamatory statement.
Mitchell v. Random House, Inc., 703 F. Supp. 1250, 1255 (S.D.
Miss. 1988), aff 'd, 865 F.2d 664 (5th Cir. 1989). "To be actionable
as defamation, the statements made must be false and must be clearly
directed toward and be 'of and concerning [the] plaintiff.'"
Id., citing Ferguson v. Watkins, 448 So. 2d 271, 275 (Miss. 1984).
"Moreover, to state a claim for defamation, it is necessary
that the defamation be 'clear and unmistakable from the words themselves
and not the product of innuendo, speculation or conjecture.'"
Id. at 1256, quoting Ferguson, 448 So.2d at 275. Both the Fifth
Circuit and the Mississippi Supreme Court have emphasized that these
requirements must be "strictly enforced." Mize v. Harvey
Shapiro Enters., 714 F. Supp. 220, 224 (N.D. Miss. 198.9) ("The
Fifth Circuit has recognized that [the 'of and concerning'] requirements
are stringently applied by Mississippi courts and indicated that
it will do the same.")(citing Mitchell, 865 F.2d at 669); Ferguson,
448 So.2d at 275. Under Mississippi law, "the trial court in
a defamation case must make the threshold determination of whether
the language in question is actionable." Mitchell, 703 F. Supp.
at 1256; see also Chatham v. Gulf Publ'g Co., 502 So.2d 647, 650
(Miss. 1987)(court must determine, in first instance, whether statement
at issue was "clearly directed" at plaintiff).
The following statements made by Wyatt Emmerich and Beau Strittman
during interviews with defendant Morley Safer, and aired on "60
Minutes," are alleged by the plaintiffs to be defamatory:
Emmerich:
There are more lawsuits filed than there are inhabitants of Jefferson
County. Something like a third of all of the pharmaceutical cases
for some drugs have been tried there.
Safer:
Cases like the $ 150 million that was awarded to 5 plaintiffs
whom a jury found were injured by a diet drug. In neighboring
counties, the $100 million that was awarded to 10 people who took
a heartburn pill. It's not just drugs. One hundred fifty million
to six plaintiffs who argued that they might someday become
seriously ill because of asbestos exposure. Even though
many awards are reduced on appeal, many more are settled for
undisclosed amounts, because companies now fear these Mississippi juries.
Just what's behind these generous awards?
Emmerich:
Look at the jurors. These are disenfranchised people. These are
people who have been left out of the system, who feel like,
hey, stick it to the Yankee company. Stick it to the insurance
companies. Stick it to the pharmaceutical companies.
The African-Americans feel like it's payback for disenfranchisement,
and the red-necks, shall we say, it's, like, hey, get back
- - it's revenge for the Civil War. So there's a lot of resentment,
a lot of class anger, a lot of racial anger. It's very easy
to weave this racial conflict and this class conflict into
a big money pot for the attorneys.
("Jackpot Justice" Transcript, pp. 3-4) (portions quoted
in Complaint, P 28).
Safer: Everyone in Fayette knows this man, a local florist,
now a multimillionaire. But he doesn't want his name
known nationally. He took the obesity drug Redux, and started
complaining of chest pains, and was found to have a major blockage
in his heart, which he says was caused by the drug.
After seeing an ad in a local newspaper seeking plaintiffs, he
joined a suit against the manufacturer. He won't say how much he received
in a settlement, but he admits he hit paydirt.
Strittman:
A 50-cent diet pill made a lot of people multimillionaires.
Safer:
A 50-cent diet pill?
Strittman:
Made a millionaire. Come a long way. You know, in the area that
I'm from, a lot of people dream to be rich. With the diet pill
company, it has helped them to become whatever they wanted
to be.
("Jackpot Justice" Transcript, pp. 9-10) (portions
quoted in Complaint, P 29).
Safer:
But our Fayette florist says that jurors often feel that those
big, fat, rich companies should pay up.
Strittman:
That they should award it to us. Yes, sir. The jury awarded these
people this money, because they felt as if they were going to get
a cut off of it.
Safer:
The jurors benefit? Is that what you're saying?
Strittman:
They benefit after court and everything is over with. Yes, sir.
Safer:
Uh-huh. On the quiet?
Strittman:
Mm-hmm. Under the table. Yeah.
("Jackpot Justice" Transcript, p. 13) (portions quoted
in Complaint, P29).
The plaintiffs argue that the defendants' statements represented
to, suggested and/or implied that Plaintiffs disregarded their
oath as citizens and jurors; that they engaged in major, criminal
activity by accepting monies or other things of value to influence
the result of certain, distinguishable trials, i.e., Fen phen;
and that they obstructed justice. These Defendants further represented,
suggested and/or implied that Plaintiffs were not persons/jurors
of honesty, integrity, and moral character by the malicious
characterization of them as "disenfranchised people" looking to
get back at "Yankee Companies" and people "who have
been locked out of the system." In fact, the entire CBS
broadcast in issue, taken as a whole, casts Plaintiffs in a
light that can best be described as outrageously inept, dishonest
and criminal. (Plaintiffs' Memorandum Brief, p. 8).
To determine whether the plaintiffs have stated a cause of action
for defamation against Emmerich and Strittman, as opposed to the
other defendants, the Court must focus only on the four corners
of what Emmerich and Strittman actually said in the portions of
their interviews aired on the program. Lawrence v. Evans, 573 So.2d
695, 698 (Miss. 1990) (in defamation action against a source for
quotations attributed to him in a newspaper article, it would be
error to put the source's words "in the context of the entire
article as we would if [the] reporter ... and the newspaper ...
were the defendants"). Statements by the media are not the
subject of defamation claims against defendants whose statements
were merely quoted in a newspaper article or aired on a television
program. Mann v. City of Tupelo, 1995 U.S. Dist. LEXIS 21574, 1995
WL 1945433, *11 (N.D. Miss. April 13, 1995). Although allegedly
defamatory words "must be set in the context of the entire
utterance," and "their complexion draws color from the
whole," Lawrence, 573 So.2d at 698, "this rule mandates
consideration of the entire utterance of the declarant as distinguished
from the entire news report or the entire news coverage." Mann,
1995 U.S. Dist. LEXIS 21574, 1995 WL 1945433 at *12.
As noted previously, the requirement that allegedly defamatory
statements be "clearly directed toward" and "of and
concerning" the plaintiffs is strictly enforced by the Mississippi
courts. See, e.g., McCullough v. Cook, 679 So.2d 627, 631 (Miss.
1996) (even if subject statements were false, plaintiff must still
establish that words employed were "clearly directed toward
the plaintiff"); Blake v. Gannett Company, Inc., 529 So.2d
595, 603 (Miss. 1988) (if statements "are not clearly directed
toward (concerning) the plaintiff, this Court does not reach the
question of whether those statements are defamatory").
In Mitchell, supra, the court, applying Mississippi law, held
that the plaintiff's claim for defamation failed as a matter of
law. In response to the plaintiff's argument that without further
development of the facts, a decision on the viability of her defamation
claim would be premature, the court quoted R. Sack, Libel, Slander
and Related Problems (1980):
Dismissal of defamation suits for failure of the complaint to
state a cause of action or to state a claim upon which relief may
be granted occurs with relative frequency. One substantial factor
is that the communication complained of is usually before the
court at the outset; indeed in many jurisdictions it is required
that complaints themselves set forth the allegedly defamatory
statement ...
The trial court may therefore, at the earliest stages, make sound determinations
as to issues relating to the communication of which complaint
is made. Thus courts routinely consider on motions to dismiss
issues such as whether the statement at bar ... is 'of and concerning'
the plaintiff ...
R. Sack, Libel, Slander and Related Problems, 533-34, quoted
in Mitchell, 703 F. Supp. at 1258 n.10. See also Lenoir v. Tannehill,
660 F. Supp. 42, 44 (S.D. Miss. 1986); Miss. Code Ann. § 11-7-53
(1972) (plaintiff in defamation action required under Mississippi
law to plead "words or matter" constituting alleged defamation),
cited in Mitchell, 703 F. Supp. at 1258 n.10.
In this case, the statements made by defendants Emmerich and
Strittman, and alleged by the plaintiffs to be defamatory, do not
refer to any of the plaintiffs by name. It is generally recognized,
however, that a plaintiff "need not be mentioned by name so
long as he is pointed to by description or other circumstance tending
to identify him as an object of the [defamatory] language."
Klauder v. Philadelphia Newspapers, Inc., 66 Pa. D.&C.2d 271,
274 (Pa. Com. Pl. 1973), and cases cited therein; see also 54 ALR
4th 746, Annotation: Libel and Slander: Sufficiency of Identification
of Allegedly Defamed Party. In Montgomery Ward & Co. v. Skinner,
200 Miss. 44, 25 So.2d 572 (Miss. 1946), the Mississippi Supreme
Court noted that "it is incumbent upon a plaintiff seeking
compensation for a libel or slander to show that the statement complained
of was made with reference to him, but as stated in 33 Am.Jur. 243,
§ 263, 'He may discharge this burden by proof of relevant circumstances'
...." Id. at 580. And in Conroy v. Breland, 185 Miss. 787,
189 So. 814 (Miss. 1939), it was recognized that extrinsic facts
may make it clear that a statement refers to a particular individual.
Id. at 815, citing Restatement of Torts, § 564, and comments thereunder.
The Restatement (Second) of the Law of Torts provides that "[a]
defamatory communication is made concerning the person to whom its
recipient correctly, or mistakenly but reasonably, understands that
it was intended to refer." Restatement (Second) of Torts, §
564. Comment b further states:
It is not necessary that the plaintiff be designated by name;
it is enough that there is such a description of or reference
to him that those who hear or read reasonably understand the
plaintiff to be the person intended. Extrinsic facts may make
it clear that a statement refers to a particular individual
although the language used appears to defame nobody ... It
is not necessary that everyone recognize the other as the person
intended; it is enough that any recipient of the communication
reasonably so understands it. However, the fact that only one
person believes that the plaintiff was referred to is an important
factor in determining the reasonableness of his belief.
If the applicability of the defamatory matter to the plaintiff depends
upon extrinsic circumstances, it must appear that some person who
saw or read it was familiar with the circumstances and reasonably believed
that it referred to the plaintiff. Restatement (Second) of Torts,
§ 564, comment b.
A reading of the transcript confined to Emmerich's and Strittman's
statements reveals no specific reference to the plaintiffs, by name
or otherwise. The plaintiffs argue, however, that Emmerich and Strittman,
while not naming any of the individual jurors in the 1999 "Fen
Phen" case, directed their statements "at all members
of a small class or group." (Plaintiffs' Memorandum Brief,
p. 9). According to the plaintiffs, this small class or group consists
of the twelve jurors in the 1999 Fen Phen case.
In Skinner, the Mississippi Supreme Court, citing the Restatement
of Torts, noted the possibility of liability in a defamation action
where the reference is not to an individual but to a small group,
as distinguished from a general class, where the class is so small
"as to indicate that the plaintiff is the person intended or
at least to cast such grave suspicion upon him as to be defamatory
of him." Skinner, 25 So.2d at 580, citing Restatement of Torts,
§ 564, and comments thereunder. The Restatement (Second) of the
Law of Torts provides:
One who publishes defamatory matter concerning a group or class
of persons is subject to liability to an individual member of it,
but only if,
(a) the group or class is so small that the matter can reasonably understood
to refer to the member, or
(b) the circumstances of publication reasonably give rise to
the conclusion that there is particular reference to the member.
Restatement (Second) of Torts, § 564A. The comments note that
"as a general rule no action lies for the publication of defamatory
words concerning a large group or class of persons." Restatement
(Second) of Torts, § 564A, comment a. On the other hand, when
the group or class defamed is sufficiently small, the words may reasonably
be understood to have personal reference and application to any
member of it, so that he is defamed as an individual. In this case he
can recover for defamation. Thus the statement that "That jury
was bribed" may reasonably be understood to mean that
each of the twelve jurymen has accepted a bribe. It is not
possible to set definite limits as to the size of the group
or class, but the cases in which recovery has been allowed
usually have involved numbers of 25 or fewer.
Restatement (Second) of Torts, § 564A, comment b.
Individual jurors have been held to have a cause of action for
defamation based on a reference to the jury on which they served.
In Carter v. King, 174 N.C. 549, 94 S.E. 4 (N.C. 1917), the Supreme
Court of North Carolina held that jurors could bring a defamation
action for "words, oral or written, tending to impeach the
integrity and conduct of jurors in the discharge of their duty."
Id. at 6, citing 25 Cyc. Law & Proc., Libel & Slander 352
(1907). The defendant in Carter had referred specifically to the
jury on which the plaintiff served, which had been unable to agree
on a verdict and was split eleven to one. The defendant had written
in a letter that the jurors' inability to reach a verdict "was
due entirely to whisky and the appeal made to their prejudice,"
and he had "stated publicly that there was 1 man on the jury
that was not bribed." Id. at 5. The court found that this statement
naturally implied that the other eleven jurors were bribed, and
that the plaintiff was one of the eleven. Id. The plaintiff could
maintain his action although there was no reference to him individually.
"It was as harmful to libel and slander the plaintiff collectively
as one of the 11 jurors as it would have been to have libeled him
individually." Id. at 6. See also cases collected at 52 ALR
4th 618, Annotation: Defamation of Class or Group as Actionable
by Individual Member, § 20 (Jurors).
Although Emmerich and Strittman refer to "the jurors"
and "the jury" respectively, they never refer to any particular
jury. The statements therefore were not "clearly directed toward"
nor "of and concerning" the jurors in the 1999 Fen Phen
case. At best, they were of and concerning jurors in Jefferson County.
Thus, they lack the specificity required to impose liability. "Vague,
general references to a comparatively large group do not constitute
actionable defamation." 52 ALR 4th 618, § 23, citing Michigan
United Conservation Clubs v. CBS News, Div. Of CBS, Inc., 665 F.2d
110 (6th Cir. 1981).
"In balancing the societal interest in free speech and press
against the individual interest in reputation, courts have chosen
not to limit the former except to prevent injury from defamatory
statements reasonably susceptible of a definite application to a
particular individual." Scelfo v. Rutgers University, 116 N.J.
Super. 403, 282 A.2d 445 (N.J. Super. 1971), citing Rosenblatt v.
Baer, 383 U.S. 75, 15 L. Ed. 2d 597, 86 S. Ct. 669 (1966).
Where the group is small there is a great likelihood that others
will understand that the defendant intended to attribute certain
qualities, beliefs, or acts to each member. Moreover, others
are more likely to believe the statement to be based on information
concerning each particular individual rather than that it is
a generalization drawn from the observation of a few. As the
group becomes larger, it is less likely that the statement
will be understood as referring to each member of the group
and its character as a generalization becomes clearer.
Developments in the Law - Defamation, 69 Harv.Law.Rev. 875, 894
(1956). "Language which would be read seriously if written
as to an individual might not be capable of serious application
to each member of a large group; that which is general may become
vague; that which is specific may become ridiculously extravagant."
Golson v. Hearst Corporation, 128 F. Supp. 110, 112 (S.D. N.Y. 1954)
(citations omitted).
The plaintiff in Edmonds v. Delta Democrat Publishing Company,
230 Miss. 583, 93 So.2d 171 (Miss. 1957), was Executive Secretary
of the United Dry Association, a prohibition group. He brought two
claims for defamation against the defendant based on two separate
newspaper editorials. The first mentioned the plaintiff by name.
The second referred only to the "Drys," which the Mississippi
Supreme Court found referred "to no particular person, but
to ... those who advocated no change in the prohibition laws, which
included a majority of the qualified voters participating in the
liquor referendum." Id. at 174. Because the plaintiff was not
sufficiently identified in the second editorial, that claim was
not actionable. Id.
As a matter of law, an alleged defamation against all jurors
in Jefferson County can have no personal application to any individual
juror. The only way a Jefferson County juror can maintain suit is
if "the circumstances of publication reasonably give rise to
the conclusion that there is particular reference to" that
juror. Restatement (Second) of Torts, § 564A.
As noted previously, Mississippi law recognizes the right of
a plaintiff to introduce evidence of relevant circumstances and
extrinsic facts to show that he was in fact the person defamed.
Montgomery Ward & Co. v. Skinner, 25 So.2d at 580; Conroy v.
Breland, 189 So. at 815. However, the plaintiffs have not alleged
the existence of any such evidence with regard to their claims against
Emmerich and Strittman. The affidavits submitted by the plaintiffs
do not address their claims against these two defendants. Plaintiff
Jerry Scott, Sr., states in his affidavit that he has been "slandered
and defamed" by "the CBS broadcast." (Scott Affidavit,
P 6). Edmon O. Jackson, a resident of Jefferson County, states in
his affidavit that he heard the "Jackpot Justice" broadcast,
and that he "personally knows that Mr. Jerry Scott Sr. was
one of the jurors in question." (Jackson Affidavit). Neither
affidavit alleges any facts to demonstrate that Emmerich's or Strittman's
statements specifically were "of and concerning" or "clearly
directed toward" the plaintiffs.
"The real test in weighing identification is whether some
nexus exists between plaintiff and the allegedly defamatory language."
Klauder, 66 Pa. D. &C.2d at 275. In the instant case, no connection
can be shown between the plaintiffs and Emmerich's and Strittman's
statements other than the fact that the plaintiffs served as jurors
in Jefferson County. While Emmerich and Strittman referred to juries
and jurors in general, their statements lack the requisite specificity
of reference to any of the six named plaintiffs or the jury on which
they served. Therefore, it could not have reasonably been believed
by some viewer of the program that Emmerich's or Strittman's statements
were intended to refer to the plaintiffs.
Because the plaintiffs' complaint fails to allege facts sufficient
to establish that Emmerich's or Strittman's statements were "of
and concerning" or "clearly directed toward" the
plaintiffs, there is no possibility of recovery for defamation against
either of the non-diverse defendants.
II. INVASION OF PRIVACY (Counts Two and Three)
Mississippi has recognized the existence of four district theories
of invasion of privacy: (1) the intentional intrusion upon the solitude
or seclusion of another; (2) the appropriation of another's identity
for an un-permitted use; (3) the public disclosure of private facts;
or (4) holding another to the public eye in a false light Deaton
v. Delta Democrat Publ'g Co., 326 So. 2d 471, 473 (Miss. 1976).
In count two of their complaint, the plaintiffs allege that the
defendants "intentionally, deliberately, wilfully, knowingly,
and recklessly used or referenced Plaintiffs' identity or name without
their permitted authority," (Complaint, ¶ 43) and
held them out "in public ridicule [and] scorn and cast [them]
in a light of dishonesty and corruption." (Complaint, ¶
44). The defendants are alleged to have done so by making "detailed
references to the diet drug case in Jefferson County and that particular
Jury." (Complaint, ¶ 43). In count three, the plaintiffs
allege that the defendants held them out "in a false light
. . . as being dishonest, untrustworthy, willing to commit a crime
in exchange for a verdict, obstructionists of justice and other
disgraceful and criminal things." (Complaint ¶ 47).
In order to recover under a misappropriation of identity theory,
the plaintiffs must, by definition, show that they were identified
by the defendants. Similarly, in order to recover under a false
light theory, they must show that the defendants' statements were
"clearly directed at them." Mize, 714 F. Supp. at 225;
Mitchell, 703 F. Supp. at 1259 (noting the similarity of false light
privacy and defamation claims). As discussed above in connection
with the plaintiffs' defamation claim, Emmerich and Strittman made
no reference to the plaintiffs, nor to the particular jury on which
they served. The complaint therefore fails to state a claim against
Emmerich or Strittman for invasion of privacy under either theory,
and there is no possibility of recovery under counts two and three.
III. REMAINING CLAIMS (Counts Four, Five and Six)
Because the plaintiffs have not stated a claim against defendants
Emmerich or Strittman for defamation or invasion of privacy, they
cannot state a claim against either defendant under any of the remaining
counts, which are derivative of the defamation and invasion of privacy
claims.
Count four, for negligent and/or intentional infliction of emotional
distress, simply alleges that the defendants' actions caused the
plaintiffs to suffer emotional distress, without any additional
factual allegations. One element of an intentional infliction of
emotion distress claim is that the defendant's conduct be "extreme
and outrageous," i.e., capable of arousing resentment in an
average member of the community and leading him to exclaim "outrageous."
Burris v. South Central Bell Telephone Co., 540 F. Supp. 905, 909
(S.D. Miss. 1982). Since the comments of Emmerich and Strittman
are not capable of being understood as referring to the plaintiffs,
an average member of the community could not reasonably resent the
statements nor proclaim them "outrageous." One requirement
of a negligent infliction of emotional distress claim is that injury
to the plaintiff be reasonably foreseeable. Since one could not
reasonably understand Emmerich's and Strittman's comments to refer
to the plaintiffs, one could not reasonably foresee an injury based
on those comments. Count five is directed toward defendant CBS and
others responsible for the production and broadcast of the program.
Count six simply seeks a public apology and injunctive relief.
The Court concludes, based on the findings above, that the plaintiffs
have failed to assert claims against the non-diverse defendants
for which relief may be granted in state court. Therefore, the non-diverse
defendants, Emmerich and Strittman, shall be dismissed from this
case, and the plaintiffs' motion to remand shall be denied. Regarding
the affidavits submitted by the plaintiffs and considered by the
Court, the plaintiffs' motion to submit that additional evidence
is granted. Accordingly,
IT IS HEREBY ORDERED that the plaintiffs' motion to submit additionalevidence
(docket entry 10-2) is GRANTED;
FURTHER ORDERED that the plaintiffs' motion to remand (docket
entry 5) isDENIED;
FURTHER ORDERED that defendants Wyatt Emmerich and Beau Strittman
are herebydismissed from this case with prejudice.
Counsel are directed to contact Magistrate Judge Sumner so that
a schedulingorder may be entered.
SO ORDERED this the 27th day of June, 2003.
David Bramlette
UNITED STATES DISTRICT JUDGE
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