716 Fed.Appx. 622 (9th Cir. 2017), 16-16571, Hosszu v. Barrett

Docket Nº:16-16571
Citation:716 Fed.Appx. 622
Party Name:Katinka HOSSZU, Plaintiff-Appellant, v. Casey BARRETT, an individual; Sports Publications International, Inc., DBA Swimming World Magazine, DBA SwimmingWorldMagazine.com; Does, 1 through 20, inclusive, Defendants-Appellees.
Attorney:Terry Anastassiou, Spencer C. Martinez, Attorney, Ropers, Majeski, Kohn & Bentley, San Francisco, CA, Donald L. Myles, Jr., Esquire, Attorney, Sanford Keith Gerber, Jones, Skelton & Hochuli, P.L.C., Phoenix, AZ, Todd A. Roberts, Esquire, Attorney, Ropers, Majeski, Kohn & Bentley, Redwood City, CA...
Judge Panel:Before: THOMAS, Chief Judge, and REINHARDT and TROTT, Circuit Judges. TROTT, Circuit Judge, dissenting:
Case Date:December 13, 2017
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 622

716 Fed.Appx. 622 (9th Cir. 2017)

Katinka HOSSZU, Plaintiff-Appellant,

v.

Casey BARRETT, an individual; Sports Publications International, Inc., DBA Swimming World Magazine, DBA SwimmingWorldMagazine.com; Does, 1 through 20, inclusive, Defendants-Appellees.

No. 16-16571

United States Court of Appeals, Ninth Circuit

December 13, 2017

Argued and Submitted October 13, 2017 San Francisco, California

Editorial Note:

Governing the citation to unpublished opinions please refer to federal rules of appellate procedure rule 32.1. See also U.S.Ct. of App. 9th Cir. Rule 36-3.

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Appeal from the United States District Court for the District of Arizona, G. Murray Snow, District Judge, Presiding, D.C. No. 2:15-cv-02285-GMS

Terry Anastassiou, Spencer C. Martinez, Attorney, Ropers, Majeski, Kohn & Bentley, San Francisco, CA, Donald L. Myles, Jr., Esquire, Attorney, Sanford Keith Gerber, Jones, Skelton & Hochuli, P.L.C., Phoenix, AZ, Todd A. Roberts, Esquire, Attorney, Ropers, Majeski, Kohn & Bentley, Redwood City, CA, for Plaintiff-Appellant

Andrew Albright, Jeffrey Becker, Swanson, Martin & Bell, LLP, Chicago, IL, for Defendants-Appellees

Before: THOMAS, Chief Judge, and REINHARDT and TROTT, Circuit Judges.

MEMORANDUM[*]

Katinka Hosszu, an Olympic and World Champion swimmer, sued Casey Barrett and Sports Publications International ("SPI," collectively "Barrett") under 28 U.S.C. 1332(a), diversity of citizenship, and Arizona law for (1) defamation "per se" and (2) portrayal in a false light. Hosszu predicated her claims on multiple articles Barrett wrote which were published in SPI’s Swimming World Magazine ("SWM") which she says falsely implied that her remarkable professional accomplishments were the product of her secret use of banned performance-enhancing drugs ("PEDs").

The district court dismissed Hosszu’s complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief could be granted. The court concluded that Barrett’s writings were not reasonably capable of sustaining a defamatory meaning, and that the challenged statements fell within the protective ambit of the Constitution’s First Amendment as "statements of opinion on matters of public concern that do not contain or imply a provable factual assertion." Underwager v. Channel 9 Australia, 69 F.3d 361, 366 (9th Cir. 1995) (citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 20, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990)). Equally unsuccessful were her false light claims.

We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291, and we affirm.

I

We review de novo a district court’s grant of a Rule 12(b)(6) Motion for Failure to State a Claim, including a ruling that a challenged statement was not defamatory as a matter of law. "[W]e accept all factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party,"

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Katinka Hosszu. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). In order to prevail on appeal, she must demonstrate that Barrett’s statements are " ‘reasonably capable of sustaining a defamatory meaning,’ ... [and] that they are not mere ‘comment within the ambit of the First Amendment.’ " Knievel, 393 F.3d at 1073-75 (citation omitted). In approaching this task, we "ask as a threshold matter whether a reasonable factfinder could conclude that the contested statement[s] impl[y] an assertion of objective fact. If the answer is no, the claim is foreclosed by the First Amendment." Partington v. Bugliosi, 56 F.3d 1147, 1153 (9th Cir. 1995) (citation omitted).

II

Read fairly as a whole, we conclude that Barrett’s collective articles "are not statements implying the assertion of objective facts but are instead interpretations of the facts available to both the writer and the reader." Id. at 1156. The consumer of Barrett’s articles is left "free to draw his own conclusions." Id. at 1157.

First, the "general tenor of the entire work negates the impression that the defendant was asserting an objective fact." Id. at 1153. The title of Barretts May 20, 2015 article is a question: "Are Katinka Hosszus Performances Being Aided?" The third line of the piece reads, "There is no proof." Barrett also writes, "I hope my suspicions are wrong now." The article is labeled "Commentary." In addition, SWM edited the...

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