Blankenship v. NBCUniversal, LLC

• Decision Date: 02 February 2022
• Docket Number: Civil Action 2:20-cv-000278
• Parties: DON BLANKENSHIP, Plaintiff, v. NBCUNIVERSAL, LLC, CNBC, LLC, and DOES 1-50 INCLUSIVE, Defendants.
• Court: U.S. District Court — Southern District of West Virginia

DON BLANKENSHIP, Plaintiff, v. NBCUNIVERSAL, LLC, CNBC, LLC, and DOES 1-50 INCLUSIVE, Defendants.

Civil Action No. 2:20-cv-000278

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 is Defendants NBCUniversal, LLC (“NBC”) and CNBC LLC's (“CNBC”) Motion for Summary Judgment (ECF 56), filed May 24, 2021. On June 7, 2021, Plaintiff Don Blankenship responded (ECF 59) in opposition, to which NBC and CNBC replied (ECF 60) on June 14, 2021.

I. Background

Mr Blankenship instituted a civil action, now styled Blankenship v. Fox News Network, LLC, et al., No. 2:19-cv-00236 (S.D. W.Va.), on March 14, 2019, in the Circuit Court of Mingo County, asserting defamation and false light invasion of privacy claims against numerous media organizations, reporters, and others. See Fox News, ECF 1. The action was removed to this court based on diversity jurisdiction. See id; 28 U.S.C. § 1332. On April 9, 2019, Mr. Blankenship amended his complaint in the Fox News action. See id., ECF 14. The amended complaint named, for the first time, NBC and CNBC as defendants. See id.

On March 31, 2020, the court dismissed NBC and CNBC from the Fox News action without prejudice based upon insufficient service of process. See id., ECF 398. On April 20, 2020, Mr. Blankenship instituted the current action against NBC, CNBC, and fifty unnamed “Doe” defendants, asserting claims of defamation and false light invasion of privacy.^[1] See ECF 1. 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 Energy's chief executive officer. See id., ¶¶ 7-8, 33-36. While Mr. Blankenship was not charged with the deaths of the miners, the Government later charged him with three felonies, as well as one misdemeanor for conspiracy to violate federal mine safety laws. See id., ¶ 39. On December 3, 2015, a jury acquitted Mr. Blankenship of the felony charges but found him guilty of the misdemeanor offense. See id., ¶ 41. As a result, Mr. Blankenship was sentenced to one year in prison and was released in the spring of 2017. See id., ¶¶ 42-43.

In January 2018, Mr. Blankenship announced his campaign to run as a Republican for a United States Senate seat in West Virginia. See id., ¶ 44. Mr. Blankenship lost his bid for the Republican party's nomination in the primary election on May 8, 2018. See id., ¶ 54. He 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., ¶¶ 50-54.

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., ¶¶ 21, 54. Additionally, Mr. Blankenship alleges that many of these statements were made in conjunction with reference to the mine disaster and therefore had the additional effect of falsely attributing to him responsibility for murder. See id., ¶ 20. B. Allegations Against NBC and CNBC

NBC is an international media conglomerate and subsidiary of Comcast Corporation, a national telecommunications and mass-media corporation. See id., ¶ 28. NBC owns numerous entities in the news field, including CNBC, NBC News, and MSNBC. See id., ¶¶ 27-28. The websites that publish articles under these names are also owned by NBC. See id. Mr. Blankenship contends that, on May 17, 2018, Leigh Ann Caldwell, writing for NBC's website, NBCNews.com, published a defamatory statement describing Mr. Blankenship as an “ex-coal baron and convicted felon.” See id., ¶ 55 (emphasis added); see also ECF 56-5. Mr. Blankenship also contends that, on June 25, 2018, CNBC published an article written by Brian Schwartz, containing the defamatory statement “[Donald Trump Jr.] also campaigned with Morrisey in early June (sic) when he was competing in a crowded primary that included coal baron and convicted felon Don Blankenship who is now running as a third party candidate.” See id., ¶ 56 (emphasis added); see also ECF 56-6.

Based upon these allegations, Mr. Blankenship has asserted defamation and false light invasion of privacy claims against NBC and CNBC. On May 24, 2021, NBC and CNBC (the “moving defendants”) filed the subject motion seeking summary judgment as to the claims asserted against them.

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 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

A. Defamation

Defamation is “[a] false written or oral statement that damages another's reputation.” Pritt v. Republican Nat. Comm., 557 S.E.2d 853, n.12 (W.Va. 2001) (quoting Black's Law Dictionary 427 (7th ed. 1999)).

West Virginia law identifies three types of plaintiffs in defamation cases: (1) public officials and candidates for public office, (2) public figures, and (3) private individuals. See Syl. Pt. 10, Hinerman v. Daily Gazette Co., 423 S.E.2d 560, 564 (W.Va. 1992); see generally Wilson v. Daily Gazette Co., 588 S.E.2d 197 ( W.Va. 2003) (discussing types of public figures in defamation suits). The first step in assessing a claim for defamation is to determine whether the plaintiff is a private individual or is instead a candidate for public office, a public official, or a public figure. See Zsigray v. Langman, 842 S.E.2d 716, 722 (W.Va. 2020). Mr. Blankenship concedes that he qualifies as both a candidate for public office and a public figure.^[2] See ECF 59 at 4-5; see also Fox News ECF 953 at 14. While the statements at issue herein were published on May 17, 2018, and June 25, 2018, after the conclusion of the primary election, the court finds that Mr. Blankenship qualified as a candidate for public office through this time given his intention to run as the Constitution Party's candidate for the United States Senate.^[3] As Mr. Blankenship concedes, his notoriety in the state of West Virginia, his pervasive involvement in the national political arena, and the extensive national media attention he has received as set forth in detail in the court's memorandum opinion and order entered this same date in the Fox News action make clear that he also qualifies as a public figure. See Wilson, 588 S.E.2d at 205 (explaining that an individual's “general fame or notoriety in the state and pervasive involvement in the affairs of society” renders that individual an “all-purpose public figure” in a defamation action.). Regardless of whether Mr. Blankenship is referred to as a candidate for public office or public figure, the First Amendment protections are the same for each. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 336 (1974) (noting the test set forth in New York Times v. Sullivan applies to both “criticism of ‘public figures' as well as ‘public officials.'”); see also Monitor Patriot Co. v. Roy, 401 U.S. 265, 271 (1971) (noting that it “might be preferable to categorize a candidate for [public office] as a ‘public figure, '” as opposed to a public official, “if for no other reason than to avoid straining the common meaning of words. But . . . it is abundantly clear that, whichever term is applied, publications concerning candidates [for public office] must be accorded at least as much protection under the First and Fourteenth Amendments as those concerning occupants of public office.”).

To recover in a defamation action, a plaintiff who qualifies as a candidate for public office must prove that:

(1) there was the publication of a defamatory statement of fact or a statement in the form of an opinion that implied the allegation of undisclosed defamatory facts as the basis for the opinion;^[4] (2) the stated or implied facts were false; and, (3) the person who uttered the defamatory statement either knew the statement was false or knew that he was publishing the statement in reckless disregard of whether the statement was false.

Syl. Pt. 5, Chafin v. Gibson, 578 S.E.2d 361, 363 ( W.Va. 2003) (per curiam) (emphasis omitted) (quoting Syl. Pt 1, Hinerman, 423 S.E.2d at 563); accord Syl. Pt. 7, Pritt, 557 S.E.2d at 855; see also State ex rel. Suriano, 480 S.E.2d at 561 (setting forth nearly identical elements in a defamation action involving a limited purpose public figure). Further, the West Virginia Supreme Court of Appeals has also held that, to sustain a defamation action, a plaintiff who qualifies as a candidate for public office must also prove that “the publisher intended to injure the plaintiff through the knowing or reckless publication of the alleged libelous material.” Syl. Pt. 4, Chafin, 578 S.E.2d at 363 (quoting Syl. Pt. 1, Sprouse v. Clay Commc'n Inc., 211 S.E.2d 674, 679 (1975)); accord Syl. Pt. 6, Pritt, 557 S.E.2d at 855; see also State ex rel. Suriano, 480 S.E.2d at 561 (noting a limited purpose public figure...