Mallory v. S & S Publishers, CIVIL ACTION NO. 14–5702

• Decision Date: 09 May 2017
• Docket Number: CIVIL ACTION NO. 14–5702
• Parties: Carole MALLORY, Plaintiff, v. S & S PUBLISHERS, et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

260 F.Supp.3d 453

Carole MALLORY, Plaintiff,

v.S & S PUBLISHERS, et al., Defendants.

CIVIL ACTION NO. 14–5702

United States District Court, E.D. Pennsylvania.

Signed May 9, 2017

Carole Mallory, East Norriton, PA, pro se.

Matthew B. Weisberg, David A. Berlin, Weisberg Law PC, Morton, PA, for Plaintiff.

Elizabeth A. McNamara, Davis Wright Tremaine LLP, New York, NY, Andrew A. Chirls, Christina Capobianco, Fineman Krekstein & Harris PC, Philadelphia, PA, Sean M. Sullivan, Davis Wright Tremaine LLP, Los Angeles, CA, for Defendants.

OPINION

Slomsky, J.

I. INTRODUCTION

This case involves allegations of defamation arising from a 2013 biography entitled Norman Mailer: A Double Life. From 1983 to 1992, Plaintiff Carole Mallory was romantically involved with the late American writer Norman Mailer. In 2013, six years after Mailer's death, Defendant Simon and Schuster, Inc. published Norman Mailer: A Double Life, written by Defendant J. Michael Lennon. The biography "captures Mailer in all his sharp complexities and shows us how he self-consciously invented and reinvented himself throughout his lifetime." J. Michael Lennon, Norman Mailer: A Double Life, inside cover (2013). Though the biography discusses Mallory and Mailer's relationship, Mallory was never contacted to review the book before publication. She now brings this suit for defamation, alleging that the biography mischaracterized her relationship with Mailer as being "strictly sexual" when in fact the two were in a "long-time, loving relationship." (Doc. No. 61 at ¶ 10.) Defendants have filed a Motion for Summary Judgment, which is now ripe for a decision. (Doc. Nos. 93–94.)

II. BACKGROUND

Plaintiff Carole Mallory has worked as a supermodel, writer, and journalist. (Doc. No. 61 at ¶ 10.) She currently resides in Pennsylvania. (Id. at ¶ 3.) In the 1970s and 1980s, she appeared in films including The Stepford Wives. (Doc. No. 101 at 4.) During the 1980s and 1990s, Mallory had an eight-year affair with Norman Mailer. (Id. at 6.) Mallory is the author of a 2009 memoir titled Loving Mailer, which chronicles the affair. (Id. at 5.) Mallory and Mailer's relationship is at the heart of the instant lawsuit.

Norman Mailer: A Double Life (the "Biography") was written by Defendant J. Michael Lennon and published by Defendant Simon & Schuster, Inc. in 2013. (Id. at 6.) According to the inside cover of the book:

Michael Lennon knew Mailer for thirty-five years, and in writing this biography, he has had the cooperation of Mailer's late widow, Norris Church,¹ his ex-wives, and all of his children, as well as his sister, Barbara. He also had access to Mailer's vast, unpublished correspondence and papers, and he interviewed dozens of people who knew Mailer. Norman Mailer: A Double Life gives us the man in full, a remarkable and unique figure in the context of his times.

J. Michael Lennon, Norman Mailer: A Double Life (2013).

Mallory contests her portrayal in the Biography. She alleges that the Biography suggests false perceptions of her relationship with Norman Mailer, implying that their relationship was based solely on sex, money, and publicity. (Doc. No. 101 at 15.) She further claims that Defendant Lennon never attempted to contact her to confirm facts regarding her relationship with Mailer. (Id. at 13.) According to Mallory, if Lennon had made an effort to interview her, she would have informed him that various statements made in the Biography are false. (Doc. No. 61 at ¶ 13.) Specifically, Mallory objects to Lennon's portrayal of her as a "venal harlot" who seduced celebrities to advance her career and who was only interested in Mailer for his wealth and professional assistance. (Id. )

Mallory notes that the Biography has been published to third parties and is available for purchase both in stores and online. (Id. at ¶ 14.) She claims that as a result of Defendants' "malicious publication," her reputation has been diminished and she has suffered severe emotional distress and financial loss. (Id. at ¶¶ 15–16.)

On October 6, 2014, Mallory instituted this action pro se against Defendants Simon and Schuster, Inc. ("S & S Publishers"), Ivan Fisher, Esquire (Mailer's lawyer), author J. Michael Lennon, the estate of Norman Mailer, the estate of Norris Church, and Jack Scovil (Mailer's literary agent).² (Doc. No. 1.) As a pro se litigant, she filed an Amended Complaint on October 9, 2014 (Doc. No. 3), and a Second Amended Complaint and then a Third Amended Complaint on November 3 and 5, 2014, respectively (Doc. Nos. 12, 7).

Defendants filed a Motion to Dismiss on January 16, 2015. (Doc. No. 37.) On May 11, 2015, the Court held a hearing on the Motion. (Doc. No. 57.) Mallory had obtained counsel prior to the hearing, and her lawyer appeared on her behalf. On June 17, 2015, Mallory filed a counseled Fourth Amended Complaint ("FAC"), which became the operative pleading in this case. (Doc. No. 61.) In Count I of the FAC, Mallory set forth four separate theories of defamation: (1) defamation; (2) defamation per se; (3) false light; and (4) commercial disparagement-injurious falsehood. (Id. at 6.) On July 9, 2015, Defendants filed a Motion to Dismiss the FAC.³ (Doc. No. 65.) Mallory filed a Response in Opposition to the Motion, and Defendants filed a Reply. (Doc. Nos. 70, 72.) On March 10, 2016, by Order and Opinion, the Motion to Dismiss was granted in part and denied in part. (Doc. Nos. 75–76.) Plaintiff's commercial disparagement-injurious falsehood claim was dismissed in its entirety. (Id. ) In addition, certain statements Plaintiff relied upon to support a defamation claim were found to be incapable of defamatory meaning, and therefore part of this claim was also dismissed. (Id. ) Thereafter, Defendants S & S Publishers and J. Michael Lennon filed an answer to the FAC. (Doc. No. 77.)

After discovery was completed, Defendants filed a Motion for Summary Judgment. (Doc. Nos. 93–94.) On January 31, 2017, Plaintiff filed a Response in Opposition to the Motion. (Doc. No. 101.) On February 14, 2017, Defendants filed a Reply. (Doc. No. 106.)

III. STANDARD OF REVIEW

Granting summary judgment is an extraordinary remedy. Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In reaching this decision, the court must determine whether "the pleadings, depositions, answers to interrogatories, admissions, and affidavits show there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Favata v. Seidel, 511 Fed.Appx. 155, 158 (3d Cir. 2013) (quoting Azur v. Chase Bank, USA, Nat'l Ass'n, 601 F.3d 212, 216 (3d Cir. 2010) (quotation omitted)). A disputed issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party. Kaucher v. Cty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). For a fact to be considered "material," it "must have the potential to alter the outcome of the case." Favata, 511 Fed.Appx. at 158. Once the proponent of summary judgment "points to evidence demonstrating no issue of material fact exists, the non-moving party has the duty to set forth specific facts showing that a genuine issue of material fact exists and that a reasonable factfinder could rule in its favor." Id. (quoting Azur, 601 F.3d at 216 (internal quotation marks omitted)).

In deciding a motion for summary judgment, "[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. (quoting Chambers ex rel. Chambers v. Sch. Dist. of Philadelphia Bd. of Educ., 587 F.3d 176, 181 (3d Cir. 2009) (quotation omitted)). The Court's task is not to resolve disputed issues of fact, but to determine whether there exist any factual issues to be tried. Anderson, 477 U.S. at 247–49, 106 S.Ct. 2505. Whenever a factual issue arises which cannot be resolved without a credibility determination, at this stage the Court must credit the non-moving party's evidence over that presented by the moving party. Id. at 255, 106 S.Ct. 2505. If there is no factual issue, and if only one reasonable conclusion could arise from the record regarding the potential outcome under the governing law, summary judgment must be awarded in favor of the moving party. Id. at 250, 106 S.Ct. 2505.

IV. ANALYSIS

As noted above, Plaintiff alleges claims of defamation, defamation per se, and false light. Each claim will be discussed in turn, starting with the defamation claim.

A. Mallory's Defamation Claim

Defendants argue in the Motion for Summary Judgment that Plaintiff's defamation claim should be dismissed for two reasons. (Doc. No. 94 at 26.) First, Defendants contend that the two statements alleged to be defamatory are not capable of defamatory meaning as a matter of law. (Id. ) Second, Defendants argue that Plaintiff has failed to identify evidence showing a genuine issue of material fact regarding whether Defendants acted with actual malice. (Id. at 26–27.) For reasons that follow, this Court agrees and will grant summary judgment on the defamation claim.

i. Defamation Standard

To successfully establish a claim of defamation,⁴ a plaintiff has the burden of proving:

(1) The defamatory character of the communication;

(2) Its publication by the defendant;

(3) Its application to the plaintiff;

(4) The understanding by the recipient of its defamatory meaning;

(5) The understanding by the recipient of it as intended to be applied to the plaintiff;

(6) Special harm resulting to the plaintiff from its publication; and

(7) Abuse of a conditionally privileged occasion.

Joseph v. Scranton Times, L.P., 634 Pa. 35, 129 A.3d 404, 424 (2015) (quoting 42 Pa. Const. Stat. Ann. § 8343(a)).

In a defamation action, the Court must make a threshold determination of whether a challenged statement is capable of...