Bass v. Hendrix, H-94-CV-3673.

CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
Citation931 F. Supp. 523
Docket NumberNo. H-94-CV-3673.,H-94-CV-3673.
PartiesBarbara BASS, Plaintiff, v. Harville HENDRIX, IRT Workshop Coordinators, Inc., Norris Chumley, Imago Productions, Inc., and Magnetic Arts, Inc., Defendants.
Decision Date11 July 1996

931 F. Supp. 523

Barbara BASS, Plaintiff,
Harville HENDRIX, IRT Workshop Coordinators, Inc., Norris Chumley, Imago Productions, Inc., and Magnetic Arts, Inc., Defendants.

No. H-94-CV-3673.

United States District Court, S.D. Texas.

July 11, 1996.

931 F. Supp. 524
931 F. Supp. 525
931 F. Supp. 526
931 F. Supp. 527
931 F. Supp. 528
Robert E. Lapin, Carrigan, Lapin, Landa & Wilde, L.L.P., Houston, Texas, for Plaintiff

David N. Noteware, Gregory Meece, Thompson & Knight, Houston, Texas, for Defendants.


CRONE, United States Magistrate Judge.

Pending before the court is Defendant IRT Workshop Coordinators, Inc.'s ("IRT") motion for summary judgment (# 26) on all of Plaintiff Barbara Bass's ("Bass") claims.

Having reviewed the motion, the submissions of the parties, the pleadings, and the applicable law, this court is of the opinion that IRT's motion for summary judgment should be granted.

I. Background

This lawsuit arises out of the participation of the plaintiff and her former husband, Ian Bass ("Ian"), in a video series based upon the "Getting the Love You Want" workshop, produced by Imago Productions, Inc. ("Imago") and Magnetic Arts, Inc. ("Magnetic Arts"), which are both incorporated in and have their principal places of business in New York. Harville Hendrix ("Hendrix") is the president of Imago, which owns the copyright to the video series, audio cassettes, and printed materials on the "Getting the Love You Want" workshop. Hendrix is also an officer and the sole shareholder of IRT, which trains and educates Imago certified therapists — the instructors who conduct the workshops — and supplies the products and some advertising for the certified therapists and workshops. Norris Chumley ("Chumley") is the president of Magnetic Arts.

On March 7 and 8, 1992, Bass and Ian attended an Imago counseling workshop, "Getting the Love You Want," in New York City. At the workshop, Bass and her husband were chosen to participate in a demonstration exercise. During the workshop, an announcement was made that a video series about Imago relationship therapy was being made and that volunteer couples were being sought to participate. The participants would receive "free therapy" and an honorarium of $500.00 in return for their participation. Bass and Ian indicated that they wished to participate in the project and signed a letter to that effect. According to Bass, she agreed to participate in the video series on the assurances of Chumley that their privacy would be respected and that "only what you chose to share will be seen." In fact, the participation letter states: "Rest assured that your needs will be respected; your privacy protected. Only what you choose to share will be seen." On March 9, 1992, Bass signed a release consenting to the use of her "name, picture, portrait, and voice" in the "Getting the Love You Want" video/television project. Bass claims that

931 F. Supp. 529
she signed the release because Chumley told her that she and Ian would have the right, at their discretion, to edit what they did not want included in the series. IRT, on the other hand, maintains that under the terms of the release, Bass never had the right to edit the final version. On March 26, 1992, Chumley, with a film crew, went to the Basses' home in Fairfield, Connecticut. Bass and her husband attended two more filming sessions at the Union Theological Seminary in New York on April 21 and 22, 1992. The final filming session took place at the Basses' home in Connecticut on May 9, 1992. According to Bass, no one connected with the videos series ever contacted her concerning her right to edit the film

Bass first learned that the video series had been completed when acquaintances told her that they had seen a segment, which included her and Ian, that had aired on the "Oprah Winfrey Show" on January 18, 1993. On January 21, 1993, Ian called Chumley, stating that they had a problem with being included in the series. Hendrix and Chumley met with Ian on January 29, 1993, regarding the Basses' concerns about their appearance in the series. On February 4, 1993, Bass and her husband wrote to Hendrix and Chumley, stating that there were portions of the tapes that they "chose NOT to share." On March 15, 1994, Bass wrote Hendrix, stating that she was withdrawing her consent to the use of her "name, face, voice, etc." in the video series and in any other materials. Although Bass is currently a Texas resident, at that time of the filming of the series, she was a Connecticut resident and did not relocate to Texas until after the completion of the video series and after it had been shown on the "Oprah Winfrey Show."

On September 23, 1994, Bass filed this lawsuit in the 127th Judicial District Court of Harris County, Texas, claiming violations of the Texas Deceptive Trade Practices Act ("DTPA"), breach of the duty of good faith and fair dealing, negligence, gross negligence, breach of contract, attorney's fees under Chapter 38 of the Texas Civil Practice & Remedies Code, and intentional infliction of emotional distress. The defendants removed this action to federal court on October 27, 1994, on the basis of diversity of citizenship. On April 30, 1996, Hendrix, IRT, Chumley, Imago, and Magnetic Arts filed the instant motion for summary judgment. Hendrix, Chumley, Imago, and Magnetic Arts also filed a motion to dismiss for lack of personal jurisdiction, which the court granted on July 5, 1996. IRT, which does not contest this court's personal jurisdiction over it because it maintains an employee in Texas, is the only defendant remaining.

II. Analysis

A. The Standard for Summary Judgment

Rule 56(c) provides that "summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2549, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Williams v. Adams, 836 F.2d 958, 960 (5th Cir.1988). Once a proper motion has been made, the non-moving party may not rest upon mere allegations or denials in the pleadings, but must set forth specific facts showing the existence of a genuine issue for trial. Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. at 2552-53; Anderson, 477 U.S. at 257, 106 S.Ct. at 2514-15; Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 506 U.S. 825, 113 S.Ct. 82, 121 L.Ed.2d 46 (1992). The controverted evidence must be viewed in the light most favorable to the non-movant and all reasonable doubts must be resolved against the moving party. Palmer v. BRG of Georgia, Inc., 498 U.S. 46, 49 n. 5, 111 S.Ct. 401, 402, 112 L.Ed.2d 349 (1990); Anderson,

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477 U.S. at 255, 106 S.Ct. at 2513-14; Judwin Properties, Inc. v. United States Fire Ins. Co., 973 F.2d 432, 435 (5th Cir.1992). Summary judgment is mandated if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to his case on which he bears the burden of proof at trial. Celotex Corp., 477 U.S. at 322, 106 S.Ct. at 2552

B. Intentional Infliction of Emotional Distress

IRT asserts that Bass is attempting to hold it liable for the publication of truthful information, and in so doing, she is seeking to circumvent the requirements for establishing a claim for libel. Therefore, IRT maintains that Bass's non-libel claims, such as intentional infliction of emotional distress, must be dismissed because Bass cannot show that any portion of the video series is false. Bass, on the other hand, contends that she has not alleged any claim for defamation, but, rather, IRT is attempting to replead her complaint. Bass further argues that the standard for establishing libel in this case is inapplicable because IRT is not a media defendant.

The United States Supreme Court has expressly precluded the recovery of damages for the publication of a statement under a theory of intentional infliction of emotional distress when the plaintiff has failed to establish the falsity of the statement. In Hustler Magazine v. Falwell, the Court stated:

Public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing in addition that the publication contains a false statement of fact which was made with "actual malice," i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true.

485 U.S. 46, 56, 108 S.Ct. 876, 882, 99 L.Ed.2d 41 (1988); see also Liles v. Finstad, No. 01-94-00258-CV, 1995 WL 457260, at *10 (Tex.App. — Houston 1st Dist. Aug. 3, 1995, writ filed); Valenzuela v. Aquino, 800 S.W.2d 301, 307 (Tex.App. — Corpus Christi 1990), aff'd in part, rev'd in part on other grounds, 853 S.W.2d 512 (Tex.1993). The principle underlying the Court's decision in Falwell is that the plaintiff may not circumvent the protections accorded by the First Amendment by pleading a cause of action, such as intentional infliction of emotional distress, instead of a claim for defamation. Valenzuela, 800 S.W.2d at 307. Without regard to whether the plaintiff is a public or private figure, he must show falsity in order to recover damages from a media defendant. Rogers v. Dallas Morning...

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