Boulger v. Woods
Decision Date | 24 January 2018 |
Docket Number | Case No.: 2:17–cv–186 |
Citation | 306 F.Supp.3d 985 |
Parties | Portia A. BOULGER, Plaintiff, v. James H. WOODS, Defendant. |
Court | U.S. District Court — Southern District of Ohio |
Nathaniel Zachary West, Ohio Democratic Party, Columbus, OH, Joseph E. Sandler, Washington, DC, for Plaintiff.
D. Patrick Kasson, Reminger Co., LPA, Columbus, OH, for Defendant.
This matter is before the Court upon two motions by Defendant James Woods: (1) a Motion for Judgment on the Pleadings, filed June 7, 2017 (Doc. 7); and (2) a Motion for Summary Judgment, or in the Alternative, Motion for Dismissal, filed August 15, 2017 (Doc. 16). The motions are both fully briefed and ripe for disposition. For the following reasons, Woods's Motion for Summary Judgment, or in the Alternative, Motion for Dismissal is DENIED and Woods's Motion for Judgment on the Pleadings is GRANTED .
The relevant facts occurred against the backdrop of the 2016 U.S. Presidential campaign. The parties are Plaintiff Portia
Boulger, "a very active volunteer and pledged convention delegate for U.S. Senator Bernie Sanders (D–Vt)" for the Democratic Party's nomination, and Defendant James Woods, "a well-known movie actor and producer who has appeared in a number of films including The Way We Were, The Onion Field, and Once Upon a Time in
America ." .
On Friday, March 11, 2016, the campaign of Donald J. Trump, then a candidate for the Republican nomination for President, held a rally in Chicago, Illinois. (Id. ¶ 7). That evening, the Chicago Tribune newspaper posted on its Twitter account a photograph of a woman at the rally, wearing a Trump T-shirt, and "giving a Nazi salute—the well-known ‘Heil Hitler’ salute with her right hand raised straight up." (Id. ¶ 8). On Saturday, March 12, the Twitter user @voxday posted the photograph, together with a photograph of Boulger and caption identifying Boulger as "Organizer (Women for Bernie)." (Doc. 7, PAGEID # 61, screenshot). The two photographs and caption were accompanied by the (false) statement, "The ‘trump Nazi’ is Portia
Boulger, who runs the Women for Bernie Sanders Twitter account. It's another media plant.’ " (Doc. 7, PAGEID # 61).
Within minutes of @voxday's tweet, Defendant James H. Woods tweeted the same two photographs and caption along with the comment, "So-called #Trump ‘Nazi’ is a #BernieSanders agitator/operative?" (Id. ¶ 12; Doc. 9–1, screenshot). Woods's Twitter account has more than 350,000 followers and the tweet in question was re-tweeted more than 5,000 times, including by Mr. Trump's son, Donald Trump, Jr. .
Later that same Saturday, the woman who gave the salute at the rally was correctly identified by various newspapers and twitter users as Birgitt Peterson of Yorkville, Illinois. . Woods then tweeted, still on that same Saturday, that (Doc. 7, PAGEID #62, screenshot). However, Woods did not delete his earlier tweet containing the photographs of Peterson and Boulger. .
On March 22, 2016, counsel for Boulger wrote to counsel for Woods, requesting that Woods delete the tweet and issue, through Twitter, a retraction and apology. (Id. ¶ 21). Woods's counsel denied that the tweet was defamatory but asked Woods to delete the tweet, which he did on March 22, 2016. (Id. ¶ 22). On March 23, 2016, Boulger's counsel again contacted Woods counsel and demanded a public retraction and apology. (Id. ¶ 23). On March 23, 2016, Woods posted three new tweets:
(ii)
(iii)
(Id. ¶ 24).
During the period from March 12–March 23, 2016, while Woods' tweet remained posted on his Twitter account, Boulger received hundreds of obscene and threatening messages, including death threats. (Id. ¶ 26). Boulger has also received telephone calls at her residence, continuing through the time she filed her Complaint, from callers who hung up when the phone was answered. (Id. ¶ 27).
Boulger filed her Complaint against Woods on March 3, 2017, asserting two claims:defamation and invasion of privacy. (Doc. 1). On June 1, 2017, Boulger filed a motion for extension of time to complete service of process on Woods, as the 90 days for completion of service allowed by Federal Rule of Civil Procedure 4(m) was about to expire. (Doc. 4). Boulger described in her motion the efforts her counsel had undertaken in attempting to serve Woods:
The Court granted Boulger's request for an extension of time on June 6 and ordered that she complete service on Woods no later than August 7, 2017. (Doc. 5). The following day, June 7, 2017, Woods filed an Answer to the Complaint (including affirmative defenses of insufficient service of process and lack of personal jurisdiction) and a Motion for Judgment on the Pleadings (arguing that Boulger's allegations failed to state a viable claim for either defamation or invasion of privacy because Woods's tweet was not a statement of fact). (Docs. 6–7). The parties also jointly filed a Rule 26(f) report on July 11, 2017, which stated that (Doc. 12 at 2).
On August 15, 2017, eight days after Boulger's extended time to complete service expired, Woods filed a Motion for Summary Judgment, or in the Alternative, Motion for Dismissal due to Boulger's failure to perfect service within the time permitted by the Court. (Doc. 16). Boulger asserts that Woods has waived his defenses of insufficient service of process and lack of personal jurisdiction by failing to raise those defenses in his previous Motion for Judgment on the Pleadings under Rule 12(c). (Doc. 19). The Motion for Summary Judgment and Motion for Judgment on the Pleadings have now been fully briefed and are ripe for decision.
Although Woods's second motion is styled as a "Motion for Summary Judgment, or in the Alternative, Motion for Dismissal," its substance is clearly that of a motion to dismiss for insufficient service of process under Federal Rule of Civil Procedure 12(b)(5). The Sixth Circuit has noted that summary judgment is an "improper" vehicle to challenge service of process "because the defense ...
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