Fudge v. Penthouse Intern., Ltd.

• Decision Date: 01 March 1988
• Docket Number: Nos. 87-1610,87-1624,s. 87-1610
• Citation: 840 F.2d 1012
• Parties: , 10 Fed.R.Serv.3d 737, 45 Ed. Law Rep. 500, 14 Media L. Rep. 2353 Leslie FUDGE, et al., Plaintiffs, Appellants, v. PENTHOUSE INTERNATIONAL, LTD., et al., Defendants, Appellees. Leslie FUDGE, et al., Plaintiffs, Appellees, v. PENTHOUSE INTERNATIONAL, LTD., et al., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 1012

840 F.2d 1012

56 USLW 2555, 10 Fed.R.Serv.3d 737,

45 Ed. Law Rep. 500,

14 Media L. Rep. 2353

Leslie FUDGE, et al., Plaintiffs, Appellants, v. PENTHOUSE INTERNATIONAL, LTD., et al., Defendants, Appellees.

Leslie FUDGE, et al., Plaintiffs, Appellees, v. PENTHOUSE INTERNATIONAL, LTD., et al., Defendants, Appellants.

Nos. 87-1610, 87-1624.

United States Court of Appeals First Circuit.

Argued Dec. 11, 1987.

Decided March 1, 1988.

Stephen J. Fortunato, Jr., with whom Fortunato & Salvadore, Providence, R.I., was on brief, for plaintiffs, appellants.

Jeffrey H. Daichman, with whom Grutman Miller Greenspoon & Hendler, Washington, D.C., Dennis J. Roberts, II, and Roberts, Carroll, Feldstein & Tucker, Providence, R.I., were on brief, for defendants, appellees.

Before COFFIN, TORRUELLA and SELYA, Circuit Judges.

COFFIN, Circuit Judge.

Four schoolgirls in the eight-to-twelve-year-old range and their parents brought this action alleging that Penthouse magazine's publication of a story involving the girls was libelous, portrayed them in a false light, and constituted the intentional infliction of emotional distress. The district court granted Penthouse's motion to dismiss the complaint but denied Penthouse's motion seeking sanctions against plaintiffs and their attorney for frivolous litigation. Both parties appeal. We affirm the district court in all respects.

I.

Plaintiffs' complaint alleged the following facts, which for the purposes of a motion to dismiss we must accept as true. In the fall of 1985, Leslie Fudge, Jennifer Ann Merritt, Tina Marie Oliver, and Renee Vincent were all students at the Oakland Beach Elementary School in Warwick, Rhode Island. In November of that year, because of apparent conflicts between some of the school's male and female students, the school's principal decided to segregate the sexes during recess periods. The Providence Journal-Bulletin ran an item on the story, along with a photograph showing the four girls giving the thumbs-down sign to show their disapproval of the principal's decision. The story and the picture were soon picked up by the Associated Press.

Five months later, in April of 1986, Penthouse magazine, which describes itself as "The International Magazine for Men," printed a slightly cropped version of the photograph that had originally appeared in the Journal-Bulletin, along with a one-paragraph story, under the headline "Little Amazons Attack Boys." The story appeared on page 144, in a section of the magazine entitled "Hard Times" and subtitled "A compendium of bizarre, idiotic, lurid, and ofttimes witless driblets of information culled from the nation's press." The story, which plaintiffs did not attach to their complaint, read in its entirety as follows:

The Oakland Beach Elementary School in Warwick, Rhode Island, has segregated recesses to protect the boys from the girls. "They kick them in the shins, pull their hair, and kick them ... well, in various painful places," said the principal. The fights have been occurring daily since the school year began. An 11-year-old boy said, "They beat us up all the time. I've been kicked where it counts." (The Register-Guard--submitted by Michel Biedermann, Springfield, Oreg.)

In the battle of the sexes, we'd certainly score this round for the girls.--Editor

Plaintiffs alleged that on page 72 of the same issue of Penthouse, in an article entitled "Good Vibrations" by one Al Goldstein, the term "amazon" was defined as "a sexually aggressive and insatiable female whose desires can only be quelled and satisfied" through the use of mechanical devices.

The girls and their parents filed this action in Rhode Island Superior Court against Penthouse International, Ltd., which owns the magazine, and Bob Guccione, the magazine's editor and publisher (hereinafter referred to collectively as "Penthouse"). The complaint alleged that the term "amazon" was libelous, that the article presented plaintiffs in a false light, and that the publication in a sexually-explicit men's magazine of the photograph of the girls constituted the intentional infliction of emotional distress. Penthouse removed the action to the federal district court based on diversity of citizenship. Penthouse then moved to dismiss the complaint for failure to state a claim and moved for Rule 11 sanctions for frivolous litigation. The district court granted the motion to dismiss but denied the motion for sanctions. All parties now appeal.

II.

We first consider plaintiffs' claim that the district court erred in considering a copy of the article itself in ruling on the motion to dismiss. Plaintiffs did not attach a copy of the article to their complaint rather, Penthouse submitted the article in support of its motion to dismiss. Plaintiffs assert that under Fed.R.Civ.P. 12(b), the district court should either have excluded the article--as a "matter[ ] outside the pleading"--or treated the motion to dismiss as one for summary judgment and afforded plaintiffs an opportunity to submit additional evidentiary materials. See Medina v. Rudman, 545 F.2d 244, 247 (1st Cir.1976), cert. denied, 434 U.S. 891, 98 S.Ct. 266, 54 L.Ed.2d 177 (1977). ¹

We think the district court acted properly. Although "there is no requirement that the pleader attach a copy of the writing on which his action or defense is based[,] ... when plaintiff fails to introduce a pertinent document as part of his pleading, defendant may introduce the exhibit as part of his motion attacking the pleading." 5 C. Wright & A. Miller, Federal Practice and Procedure Sec. 1327 at 489 (1969) (citations omitted); cf. Ed Miniat, Inc. v. Globe Life Ins. Group, Inc., 805 F.2d 732, 739 n. 12 (7th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 3188, 96 L.Ed.2d 676 (1987).

Clearly, not every document referred to in a complaint may be considered incorporated by reference and thus introduced by the moving party in support of a motion to dismiss. See Goldman v. Belden, 754 F.2d 1059, 1066 (2d Cir.1985) ("[L]imited quotation does not constitute incorporation by reference."); Seidel v. Public Service Co. of New Hampshire, 616 F.Supp. 1342, 1353 (D.N.H.1985). But here the article was not merely referred to in plaintiffs' complaint but was absolutely central to it. Plaintiffs unquestionably would have had to offer a copy of the article in order to prove their case. Moreover, plaintiffs did not and do not challenge the authenticity of the copy of the article submitted by Penthouse. Finally, plaintiffs suffered no prejudice from their lack of opportunity to submit additional evidentiary materials. Nothing they could have introduced could have affected the disposition of the purely legal questions that the motion to dismiss raised about the article itself. We therefore see no obstacle to the district court's or our consideration of the article.

III.

As each of plaintiffs' claims raises different legal issues, we proceed by discussing those claims seriatim, beginning with the libel claim and then moving on to the false light and emotional distress claims.

A. The Libel Claim

We think it important to begin by setting forth the exact allegations of plaintiffs' complaint. First, plaintiffs alleged that the term "amazon" was defamatory because it imputed to the girls, who are of elementary school age, "criminality in the form of sexual activity and a lack of chastity, when, in fact, they are chaste." Second, plaintiffs alleged that the term defamed them because it "historically had, and presently has, the connotations of 'masculine woman' and 'shrew,' [when in fact] none of your minor plaintiffs have any characteristics inappropriate to their sex and age group." Third, plaintiffs alleged that the term was defamatory because it was defined in another article in the same issue of Penthouse as a sexually aggressive and insatiable female who uses a mechanical device for her gratification.

Under Rhode Island law, one of the elements of a libel claim is "a false and defamatory statement concerning another." Healey v. New England Newspapers, Inc., 520 A.2d 147, 149 (R.I.1987). Penthouse argued below, and the district court agreed, that the libel claim should be dismissed on the ground that the term "amazon" could not possibly be "false" because it was a constitutionally-protected statement of opinion. "Under the First Amendment there is no such thing as a false idea." Gertz v. Robert Welch, Inc., 418 U.S. 323, 339, 94 S.Ct. 2997, 3006, 41 L.Ed.2d 789 (1974). If the challenged statement is one of opinion rather than fact, then under the First Amendment it generally cannot give rise to a defamation claim. See Greenbelt Cooperative Publishing Ass'n v. Bresler, 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970); McCabe v. Rattiner, 814 F.2d 839, 841 (1st Cir.1987); Healey, 520 A.2d at 150; cf. Old Dominion Branch No. 496, Nat'l Ass'n of Letter Carriers v. Austin, 418 U.S. 264, 284, 94 S.Ct. 2770, 2781, 41 L.Ed.2d 745 (1974). The determination whether a printed statement is protected opinion or an unprotected factual assertion is a matter of law for the court. Ollman v. Evans, 750 F.2d 970, 978 (D.C.Cir.1984) (en banc), cert. denied, 471 U.S. 1127, 105 S.Ct. 2662, 86 L.Ed.2d 278 (1985). In making this determination, we "examine the statement itself, the article as a whole, and its social context...." McCabe, 814 F.2d at 842. We turn now to a discussion of these three factors.

Turning first to the statement itself, we note that the word "amazon", like the word "scam" in McCabe, id., does not have a single precise meaning. The pertinent dictionary definitions of "amazon" are (1) "one of a race or nation of female warriors usu[ally] associated with Scythia or Asia Minor with whom the ancient Greeks of mythology repeatedly warred," (2) "a female warrior," or (3) "a tall strong masculine woman." Webster's Third New International Dictionary 66 (1981).

None of these definitions imputes criminality or sexual conduct, thus negating plainti...