Blankenship v. Bos. Globe Media Partners

Decision Date02 February 2022
Docket NumberCivil Action 2:19-cv-00589
PartiesDON BLANKENSHIP, Plaintiff, v. BOSTON GLOBE MEDIA PARTNERS, LLC d/b/a THE BOSTON GLOBE, and DOES 1-50 INCLUSIVE, Defendants.
CourtUnited States District Courts. 4th Circuit. Southern District of West Virginia

DON BLANKENSHIP, Plaintiff,
v.

BOSTON GLOBE MEDIA PARTNERS, LLC d/b/a THE BOSTON GLOBE, and DOES 1-50 INCLUSIVE, Defendants.

Civil Action No. 2:19-cv-00589

United States District Court, S.D. West Virginia, Charleston

February 2, 2022


MEMORANDUM OPINION AND ORDER

John T. Copenhaver, Jr. Senior United States District Judge

Pending are Defendant Boston Globe Media Partners, LLC's (the “Boston Globe”) objections and motion to strike Plaintiff Don Blankenship's supplemental disclosures (ECF 72), filed May 24, 2021, and the Boston Globe's motion for summary judgment (ECF 76), filed July 13, 2021. On July 27, 2021, Mr. Blankenship responded in opposition (ECF 78) to the motion for summary judgment, to which the Boston Globe replied (ECF 79) on August 3, 2021.

I. Background

On May 20, 2019, Mr. Blankenship instituted this action against the Boston Globe and fifty unnamed “Doe”

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defendants[1] in the Circuit Court of Mingo County, asserting claims of defamation and false light invasion of privacy.[2] See ECF 1-1. On August 12, 2019, the action was removed to this court based on diversity jurisdiction. See ECF 1; 28 U.S.C. § 1332. The complaint alleges the following.

A. General Allegations

After an explosion in a West Virginia mine resulted in the deaths of twenty-nine miners, the United States Government initiated an investigation into the cause of the explosion, focusing on Massey Energy, which operated the mine, and Mr. Blankenship, who was Massey's chief executive officer. See ECF 1-1 ¶¶ 7-8, 35-38. While Mr. Blankenship was not charged with the miners' deaths, the Government later charged him with three felonies, as well as one misdemeanor for conspiracy to violate federal mine safety laws. See id. ¶ 41. On December 3, 2015, a

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jury acquitted Mr. Blankenship of the felony charges but found him guilty of the misdemeanor offense. See id. ¶ 43. As a result, Mr. Blankenship was sentenced to one year in prison and was released in the spring of 2017. See id. ¶ 44.

In January 2018, Mr. Blankenship announced his campaign to run as a Republican for a United States Senate seat in West Virginia. See id. ¶ 46. Mr. Blankenship lost his bid for the Republican party's nomination in the primary election on May 8, 2018. See id. ¶ 62. Mr. Blankenship alleges that media coverage was responsible for his loss due to defamatory statements referring to him as a “felon” or “convicted felon, ” despite that he was acquitted of the felony charges and was only convicted of the misdemeanor offense. See id. ¶¶ 52-59. Mr. Blankenship alleges that these defamatory statements injured his reputation, prevented him from pursuing other business opportunities, and caused him to lose the primary election. See id. ¶¶ 25, 62.

B. Allegations Against the Boston Globe

The Boston Globe, a Delaware limited liability company, is the publisher of The Boston Globe newspaper. See id. ¶ 32; see also ECF 77 at 5. The Boston Globe newspaper “is a regional newspaper published in the Boston, Massachusetts area.” ECF 77 at 5; ECF 77-1 ¶ 2. “For several years, page two

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of the [Boston] Globe newspaper has been published under the banner ‘The Nation,' usually with the subheading of ‘Daily Briefing' over some of the articles on the page.” ECF 77-1 ¶ 4. The Nation page of the newspaper consists of news from other parts of the country populated by wire service articles from the Associated Press, The New York Times, and the Washington Post for Boston Globe readers who primarily reside in the New England states. Id.

On May 22, 2018, two weeks after the primary election, the Boston Globe published an edited version of an Associated Press (“AP”)[3] article under the headline “W.Va. primary loser makes bid to try again.” See ECF 77-2 at 3. The original, unedited version of the AP article, authored by John Ruby, described Mr. Blankenship as a “convicted ex-coal baron” who had “spent a year in federal prison for violating safety regulations in a 2010 mine explosion that killed 29 miners.” ECF 77-4 at 2, 4. Before the AP article was republished by the Boston Globe, the article was edited by Daniel Coleman, a layout and copy editor for the Boston Globe, to change “convicted ex-coal baron”

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to “convicted felon and former coal baron.”[4] See ECF 77-9 at 71. The first paragraph of the edited article published in the May 22, 2018, edition of the Boston Globe newspaper thus read:

Despite losing the Republican primary in a distant third place, convicted felon and former coal baron Don Blankenship announced Monday that he will continue his bid for U.S. Senate as a third-party candidate, though it's unclear if the move violates West Virginia's ‘sore loser' law.

ECF 77-2 at 3 (emphasis added); see also ECF 1-1 ¶ 24. On June 14, 2019, after this case was filed in state court on May 20, 2019, the Boston Globe published the following correction to the article:

Because of an editing error, a May 22, 2018, story about former coal executive Don Blankenship of West Virginia referred incorrectly to his criminal case. He was convicted of a misdemeanor for his role in connection with a deadly 2010 mine disaster. The Globe regrets the error.[5]
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ECF 77-12.[6] The convicted felon reference in the May 22, 2018, article forms the basis of Mr. Blankenship's claims against the Boston Globe for defamation and false light invasion of privacy.

On May 24, 2021, the Boston Globe moved to strike Mr. Blankenship's supplemental Rule 26(a)(1) disclosures as untimely.[7] See ECF 72. Thereafter, on July 13, 2021, the Boston Globe moved for summary judgment. See ECF 76. The court will first address the motion for summary judgment before turning to the motion to strike.

II. Governing Standard

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). A fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if “the evidence is such that a reasonable jury could

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return a verdict for the nonmoving party.” Id. In deciding a motion for summary judgment, the court must view the evidence and all reasonable inferences drawn therefrom in a light most favorable to the non-moving party. See Tolan v. Cotton, 572 U.S. 650, 651, 657 (2014) (per curiam).

III. Discussion

The Boston Globe contends summary judgment is warranted inasmuch as (1) the court lacks personal jurisdiction over it, and (2) Mr. Blankenship has failed to produce clear and convincing evidence supporting his claims. Mr. Blankenship responds that the Boston Globe waived its personal jurisdiction defense given its failure to seasonably assert the same and that he has produced sufficient evidence supporting his claims. The court will address these contentions in turn.

A. Personal Jurisdiction and Waiver

Pursuant to Federal Rule of Civil Procedure 12(b)(2), a personal jurisdiction challenge is an affirmative defense that must be raised by the defendant. See Grayson v. Anderson, 816 F.3d 262, 267 (4th Cir. 2016). The personal jurisdiction defense can be waived, however, if it is not timely asserted. Fed.R.Civ.P. 12(h)(1). Indeed, a party waives the defense if

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it fails to raise the same at the time it files a Rule 12 motion or in its answer, whichever is first. Id.; see also Convergence Techs. (USA), LLC v. Microloops Corp., 711 F.Supp.2d 626, 632 (E.D. Va. 2010) (explaining “it is well-established that objections to personal jurisdiction must be raised at the time the first significant defensive move is made - whether it be by way of a Rule 12 motion or in a responsive pleading.”) (internal citations omitted).

“Rule 12(h), however, ‘sets only the outer limits of waiver; it does not preclude waiver by implication.'” Hager v. Graham, No. 5:05-CV-129, 2010 WL 753242, *1 (N.D. W.Va. March 2, 2010) (quoting Yeldell v. Tutt, 913 F.2d 533, 539 (8th Cir. 1990)). In some circumstances a defendant's conduct “may amount to a legal submission to the jurisdiction of the court, whether voluntary or not.” ABC Phones of N. Carolina, Inc. v. Yahyavi, No. 5:20-CV-0090-BR, 2020 WL 4208923, *3 (E.D. N.C. July 22, 2020) (internal citations omitted). For instance, “a party can be held to have waived a defense listed in Rule 12(h)(1) through conduct, such as extensive participation in the discovery process or other aspects of the litigation of the case even if the literal requirements of Rule 12(h)(1) have been met.” 5C Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1391 (3d ed.) (updated Apr. 2020)); see also Hager,

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2010 WL 753242 at *1 (noting “[a]s a privilege, the personal jurisdiction defense may be waived ‘by failure [to] assert [it] seasonably, by formal submission in a cause, or by submission through conduct.'”) (quoting Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 168 (1939)); U.S. to Use of Combustion Sys. Sales, Inc. v. Eastern Metal Prod. & Fabricators, Inc., 112 F.R.D. 685, 687 (M.D. N.C. 1986) (noting that waiver of the personal jurisdiction defense “has been inferred in a wide variety of situations, even when the defense has been formally raised in an answer, by conduct and inaction, such as entering an appearance, filing motions and requesting relief, or participating in hearings or discovery.”); Continental Bank, N.A. v. Meyer, 10 F.3d 1293, 1297 (7th Cir. 1993) (concluding that the defendants' active participation in the litigation for two-and-a-half years by participating in discovery and motions practice constituted a waiver of the personal jurisdiction defense.).

With that being said, “[t]here is no bright line rule when determining whether waiver by conduct is appropriate; indeed, it is ‘more [an] art than a science.'” Edwards v. Clinical Solutions, No....

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