Bentkowski v. Magazine

Decision Date19 April 2011
Docket NumberNo. 09–4547.,09–4547.
Citation637 F.3d 689
PartiesDavid A. BENTKOWSKI, Plaintiff–Appellant,v.SCENE MAGAZINE, aka Cleveland Scene; Cleveland Scene Publishing, LLC, Cleveland Scene, LLC, Village Voice Media Holdings LLC, Defendants–Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

637 F.3d 689
39 Media L. Rep. 1654

David A. BENTKOWSKI, Plaintiff–Appellant,
v.
SCENE MAGAZINE, aka Cleveland Scene; Cleveland Scene Publishing, LLC, Cleveland Scene, LLC, Village Voice Media Holdings LLC, Defendants–Appellees.

No. 09–4547.

United States Court of Appeals, Sixth Circuit.

April 19, 2011.


[637 F.3d 691]

ON BRIEF: Brent L. English, Law Offices of Brent L. English, Cleveland, Ohio, for Appellant. Kenneth Alan Zirm, Kate E. Ryan, Ulmer & Berne LLP, Cleveland, Ohio, for Appellees.Before: MARTIN, SUHRHEINRICH, and KETHLEDGE, Circuit Judges.

OPINION
BOYCE F. MARTIN, JR., Circuit Judge.

Plaintiff–Appellant David A. Bentkowski, the Mayor of Seven Hills, Ohio, sued Defendants–Appellees Scene Magazine, Cleveland Scene Publishing, LLC, Cleveland Scene, LLC, and Village Voice Media Holdings LLC for defamation arising from an article published in a weekly publication called Cleveland Scene. The district court granted Appellees' motion for summary judgment and Bentkowski appeals. In addition, Bentkowski claims that the district court erred in denying his motion for an extension of time to complete discovery and in striking his first amended complaint as a sanction. We AFFIRM the district court's grant of summary judgment and its discovery and sanction orders.

I. BACKGROUND

Bentkowski has served as the Mayor of Seven Hills since 2003. He alleges that Appellees defamed him in an article by Joe Tone published in the “First Punch” section

[637 F.3d 692]

of Cleveland Scene on August 1, 2007. The article, entitled “The Bizarre Boy Mayor,” reads in its entirety:

In his latest attempt to prove how super-duper cool his city is, Seven Hills Mayor David Bentkowski recently sent a bizarre letter to the suburb's “young residents.” The three-page missive, mailed to residents “18–40ish,” explains that “Seven Hills is actually starting to become ‘hip,’ ” noting everything from the suburb's sweet rec center to rad schools to killer sports leagues. (The mayor even plays flag football: “It is a blast.”)

Apparently under the impression he's mayor of Autistic Village, Bentkowski also instructs residents exactly how to respond “if someone ever asks you about living in Seven Hills.[”]

“You tell them the following: Seven Hills is awesome,” he implores.

The letter, which reads like a student-council campaign speech, is vintage Bentkowski. This, after all, is a 34–year–old mayor who brags about his youth, proudly wears Superman tights, and routinely tries to pull off stunts like limiting residents' feedback at meetings and barring government employees from running for office. Bentkowski, it's safe to say, has the political IQ of Quiznos' lettuce.

The letter also includes a lengthy questionnaire that asks residents to provide the ages and names of “everyone living in your household.” This, Bentkowski writes, “will help us notify you of various things that may be of interest to you. For example, if you have an 18–year–old daughter we can invite her to participate in the Miss Seven Hills Pageant,” an event the mayor has insisted he emcee. It also asks for e-mail, web, and MySpace addresses.

The mayor says he's just trying to stay in touch with residents. But the letter left some members of city council scratching their heads, says councilman Frank Petro, a regular critic of the Boy Mayor®. Nowhere does the questionnaire say it's voluntary or that personal information will be kept private. The letter doesn't appear on city letterhead and includes the mayor's personal web address. But it was paid for by the city.

“Council never approved it,” Petro says. “I don't understand who ‘we’ is. He refers to ‘we’ this and ‘we’ that. Who's ‘we?’ ”

Finally, the letter includes a “special invite” to a concert by the Spazmatics, an '80s cover band. Though the concert was part of last weekend's Seven Hills Home Days festival, the invite dubbed it a “Special Home Days Concert for ‘Younger’ Residents.”

Petro, 51 years old, wasn't sure he qualified.

“I don't know,” he said last week. “I hope I'm allowed to go.”

Bentkowski claims that two main portions of the article are defamatory: (1) the allegation that he “routinely tries to pull off stunts like limiting residents' feedback at meetings and barring government employees from running for office”; and (2) the portion of the article related to the “young residents” letter, which Bentkowski alleges falsely implies that he sought personal information about his constituents, including young women, for illicit purposes.

Bentkowski filed a complaint on August 1, 2008 in the Court of Common Pleas of Cuyahoga County, Ohio. Appellees removed the case to the United States District Court for the Northern District of Ohio. On October 16, the district court held a Case Management Conference. The district court ordered that any amended pleadings be filed by December 15, 2008, and that non-expert discovery be

[637 F.3d 693]

completed by February 27, 2009. On December 14, 2008, Bentkowski filed a first amended complaint adding several new defamation claims and defendants. On February 27, 2009, Bentkowski filed a motion for an extension of time to complete non-expert discovery. On March 2, the district court denied the motion.

On March 11, the district court ordered Bentkowski to show cause as to why it should not impose sanctions for his failure to prosecute the case. The district court noted that he had failed to comply with a Settlement Conference Order and failed to conduct any discovery in the four and a half months since the Case Management Conference. For the first time, Bentkowski's counsel informed the court that he had been incapacitated due to a serious health problem. Bentkowski filed his response and a motion for reconsideration of the earlier denial of his motion to extend time for discovery. On March 23, the district court denied the motion for reconsideration and struck Bentkowski's first amended complaint as a sanction for failing to prosecute the action, knowingly making false representations in his motion for an extension, and failing to comply with the Settlement Conference Order and Federal Rules of Civil Procedure.

On April 23, Appellees filed a motion for summary judgment. On November 6, the district court granted the motion on two alternative grounds: (1) the article was opinion and thus absolutely privileged under the Ohio Constitution; and (2) Bentkowski failed to establish that Appellees had published the article with actual malice, as required in public official defamation cases. On December 7, Bentkowski filed a notice of appeal, stating that he was appealing from the district court's order granting Appellees summary judgment and its judgment order terminating the action.

II. ANALYSIS
A. Motion for Summary Judgment

We review the district court's grant of summary judgment de novo. Wimbush v. Wyeth, 619 F.3d 632, 636 (6th Cir.2010). Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show “that there is no genuine dispute as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a).

A district court should enter summary judgment in a defendant's favor in a defamation action if it appears that the plaintiff cannot establish any one of the elements of the claim. Celebrezze v. Dayton Newspapers, Inc., 41 Ohio App.3d 343, 535 N.E.2d 755, 759 (1988). The elements of a libel claim under Ohio law are: (1) “the assertion of a false statement of fact;” (2) “the false statement was defamatory;” (3) “the false defamatory statement was published by defendants;” (4) “the publication was the proximate cause of the injury to the plaintiff;” and (5) “the defendants acted with the requisite degree of fault.” Id.

The United States Supreme Court does not recognize “a wholesale defamation exemption for anything that might be labeled ‘opinion.’ ” Milkovich v. Lorain Journal Co., 497 U.S. 1, 18, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990). However, “[t]he Ohio Constitution provides a separate and independent guarantee of protection for opinion ancillary to freedom of the press.” Vail v. The Plain Dealer Publ'g Co., 72 Ohio St.3d 279, 649 N.E.2d 182, 185 (1995). To determine whether a statement constitutes protected opinion or actionable fact, courts consider the totality of the circumstances, including factors such as: (1) “the specific language used”; (2) “whether the statement is verifiable”; (3) “the general

[637 F.3d 694]

context of the statement”; and (4) “the broader context in which the statement appeared.” Id. Weighing these factors, we agree with the district court that there is no genuine issue of material fact, and the article is protected opinion as a matter of law.

1. Specific language

Under the first factor, we review the specific language of the statements at issue. “We seek in this branch of our analysis to determine whether the allegedly defamatory statement has a precise meaning and...

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