McKee v. Cosby

• Decision Date: 16 February 2017
• Docket Number: Civil Action No. 15–30221–MGM
• Citation: 236 F.Supp.3d 427
• Parties: Katherine Mae MCKEE, Plaintiff, v. William H. COSBY, Jr., Defendant.
• Court: U.S. District Court — District of Massachusetts

236 F.Supp.3d 427

Katherine Mae MCKEE, Plaintiff,
v.
William H. COSBY, Jr., Defendant.

Civil Action No. 15–30221–MGM

United States District Court, D. Massachusetts.

Signed February 16, 2017

236 F.Supp.3d 433

F. William Salo, Law Office of F. William Salo, New York, NY, Andrew M. Abraham, Abraham & Associates, P.C., Boston, MA, for Plaintiff.

Alexander J. Merton, Quinn Emanuel Urquhart & Sullivan LLP, Washington, DC, Angela Agrusa, Liner LLP, Christopher Tayback, Marshall M. Searcy, III, Quin Emanuel Urquhart Oliver & Hedges, LLP, Los Angeles, CA, Jeffrey L. Schulman, Liner LLP, New York, NY, John J. Egan, Lauren F. Olanoff, Robert L. Quinn, Egan, Flanagan & Cohen, PC, Springfield, MA, for Defendant.

MEMORANDUM AND ORDER REGARDING DEFENDANT'S MOTION TO DISMISS

(Dkt. No. 41)

MASTROIANNI, U.S.D.J.

I. INTRODUCTION

In this action, Katherine Mae McKee ("Plaintiff") asserts defamation claims against William H. Cosby, Jr. ("Defendant") for various statements contained in a letter written to the New York Daily News ("Daily News") in response to the newspaper's publication of Plaintiff's accusation that Defendant sexually assaulted her in the 1970s. The letter, itself detailed in the media, demanded that the Daily News retract the article containing Plaintiff's allegations and faulted that newspaper for failing to consider "[e]asily available public information" purportedly undermining Plaintiff's credibility. (Dkt. No. 30, Am. Compl., Ex. A.) Presently before the court is Defendant's motion to dismiss Plaintiff's amended complaint for failure to state a claim upon which relief can be granted.

II. STANDARD OF REVIEW

When considering a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court must accept all well-pleaded facts as true and draw all reasonable inferences in favor of the plaintiff. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ; see also San Gerónimo Caribe Project, Inc. v. Acevedo–Vilá , 687 F.3d 465, 471 (1st Cir. 2012). The burden is on the moving party to demonstrate that even when viewed in the light most favorable to the plaintiff, the complaint lacks "sufficient factual matter" to state an actionable claim for relief that is " 'plausible on its face.' " Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

In evaluating the sufficiency of the factual allegations contained in the

236 F.Supp.3d 434

complaint, the court must be careful to credit the factual assertions made by the plaintiff while disregarding "legal conclusions," such as "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Id. "Determining whether a complaint states a plausible claim for relief" is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679, 129 S.Ct. 1937. A complaint must survive a motion to dismiss if the facts alleged are sufficient as to each element to "raise a right to relief above the speculative level." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ; see also Lister v. Bank of Am., N.A. , 790 F.3d 20, 23 (1st Cir. 2015) ("Dismissal for failure to state a claim is appropriate if the complaint does not set forth factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory." (internal quotation marks omitted)).

III. BACKGROUND

The following facts come directly from Plaintiff's amended complaint and the attachment thereto. Plaintiff, who resided in Nevada when she commenced this action, is an accomplished performer and actress and has worked in the entertainment industry for over fifty years. (Dkt. No. 1, Compl. ¶ 1; Am. Compl. ¶ 2.) She currently works as an independent casting director. (Am. Compl. ¶ 3.) Defendant, who resides in Massachusetts, is an internationally well-known celebrity and entertainer. (Id. ¶ 4.)

Plaintiff first met Defendant around 1964, when she was working as an aspiring actress and "showgirl" in Las Vegas, Nevada. (Id. ¶ 9.) In 1971, Plaintiff appeared as an actress on the "Bill Cosby Show." (Id. ¶ 10.) Thereafter, Plaintiff believed Defendant was a friend and socialized with him and his wife on various occasions. (Id. ¶ 11.)

One day in 1974, by coincidence, both Plaintiff and Defendant were in Detroit, Michigan, and Defendant asked Plaintiff to meet him socially. (Id. ¶ 12.) He requested that she bring ribs from a local restaurant to his hotel room, after which he would take her to a party on a friend's boat docked in the Detroit River. (Id. ¶ 13.) When Plaintiff arrived at the hotel room, Defendant, who was wearing a bathrobe and a knit wool cap, invited her in. (Id. ¶ 14.) Immediately after Plaintiff entered the room, Defendant physically attacked her, grabbing the ribs from her hand and tossing them aside. (Id. ¶¶ 15–16.) Defendant "violently and forcefully grabbed [Plaintiff] and spun [her] around so that she was facing away from [Defendant] and toward the door." (Id. ¶ 18.) Defendant then "violently lifted her dress," "pulled down her panties," and "proceeded to forcibly rape [Plaintiff] while both were still standing near the door." (Id. ¶¶ 19, 21.)

In mid–December of 2014, Nancy Dillon of the Daily News interviewed Plaintiff, who revealed the rape perpetrated by Defendant. (Id. ¶ 23.) On December 22, 2014, the Daily News published a news article written by Dillon describing the rape. (Id. ¶ 24.) That same day, Defendant, through his attorney Martin Singer, wrote a six-page letter to the Daily News addressing the article ("Singer Letter" or "Letter"). (Id. ¶ 36, Ex. A.) In general, the Singer Letter admonished the Daily News for publishing the article despite what Singer claimed were publicly available statements from Plaintiff (and her sister) demonstrating her lack of credibility.¹ (Am. Comp.,

236 F.Supp.3d 435

Ex. A.) The Singer Letter disclosed those alleged statements and provided webpage links to the sources in footnotes. (Id. ) The Singer Letter criticized the Daily News's "journalistic standard[s]" in covering Plaintiff's allegations as well as "the media" in general in covering the "stories" of "various [other] women." (Id. at 2.) Singer accused the Daily News of "publishing a malicious defamatory article" and stated the newspaper "will have only itself to blame if it finds itself in court attempting to defend its ongoing pattern of recklessly and maliciously publishing stories about my client fitting with its predetermined smear agenda." (Id. at 1, 4.) Notably, Singer stated that Defendant himself "risks being sued for defamation (as has already occurred)² if he so much as denies any scurrilous accusations made against him." (Id. at 4.) Singer demanded "[p]ublication of a retraction and correction of the defamatory Story." (Id. ) The Singer Letter closed by stating: "This letter is a confidential legal communication and is not for publication."³ (Id. )

On December 22, 2014, Singer sent the Letter to the Daily News's head office in New York City via email. (Am. Compl. ¶ 38.) Plaintiff alleges Singer also leaked a copy of the letter to the Hollywood Reporter as well as other media outlets that same day. (Id. ) Also on December 22, 2014, various statements from the Singer Letter were published in news stories around the world, including by the Daily Mail website, the Associated Press, and the Spanish-language periodical "Reforma."⁴ (Id. ¶ 47.) The following day, the Daily News published a news article about the Singer Letter wherein it described at least some of the letter's content, as did HollywoodReporter.com. (Id. ¶¶ 44, 45.)

Plaintiff alleges the Singer Letter caused harm to her reputation "days, weeks or even months" after it was originally sent to the Daily News, due to the publication of the news articles which reported on its content. (Id. ¶¶ 65, 67.) "Over time, [Plaintiff's] reputation was damaged equally in all fifty ... states." (Id. ¶ 67.) Plaintiff resided in the State of Michigan on December 22, 2014, when the Singer Letter was first sent to the Daily News. (Id. ¶ 68.) However, "she was in the process of changing her residence to the State of Nevada" at that time. (Id. ) Approximately six months later, in June of 2015, Plaintiff moved her residence to Nevada with the intent to remain there. (Id. )⁵

Plaintiff, proceeding without the assistance of counsel at the time, commenced this action on December 21, 2015, invoking the court's diversity jurisdiction under

236 F.Supp.3d 436

28 U.S.C. § 1332. (Compl.) After the court granted Plaintiff an extension of time for accomplishing service, Defendant filed a motion to dismiss targeting Plaintiff's original complaint on June 10, 2016. (Dkt. Nos. 9, 22.) In response, Plaintiff, after obtaining counsel, filed the operative amended complaint as a matter of course pursuant to Fed. R. Civ. P. 15(a)(1)(B),...