Browne v. Hearn, CAUSE NO.: 2:20-CV-196-JVB-APR

CourtUnited States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
Writing for the CourtJOSEPH S. VAN BOKKELEN, JUDGE UNITED STATES DISTRICT COURT
PartiesKATHY BROWNE, Plaintiff, v. ANNA HEARN, et al., Defendants. JENNIFER WALDO, Counter-Claimant, v. KATHY BROWNE, Counter-Defendant.
Docket NumberCAUSE NO.: 2:20-CV-196-JVB-APR
Decision Date14 May 2021

KATHY BROWNE, Plaintiff,
v.
ANNA HEARN, et al., Defendants.


JENNIFER WALDO, Counter-Claimant,
v.
KATHY BROWNE, Counter-Defendant.

CAUSE NO.: 2:20-CV-196-JVB-APR

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA HAMMOND DIVISION

May 14, 2021


OPINION AND ORDER

This matter is before the Court on a motion to dismiss filed by Defendant Anna Hearn on July 20, 2020 [DE 32]. Plaintiff Kathy Browne filed a response on September 2, 2020, and Hearn replied on October 2, 2020. The Court previously granted the motion in part. The Court now takes up the remaining arguments and denies Hearn's request to dismiss the remaining claims pending against her.

BACKGROUND

On July 2, 2020, Plaintiff filed a seventeen-count Amended Complaint against four defendants. The remaining defendants are Jennifer Waldo and Anna Hearn. The pertinent allegations are as follows: Plaintiff Kathy Browne, a bi-racial woman who lives in Virginia, is an author who sells books online. In 2017, Waldo contacted Browne on social media and began harassing her and posting "derogatory, misleading, and false" comments online to interfere with

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Browne's book sales. This was part of a long-running dispute between Browne and Waldo, during which each acquired "intimate photos" of the other.

Waldo sought a protective order and criminal charges against Browne. Browne alleges that Waldo and Hearn (Waldo's attorney in the protective order case) embarked on a wide-ranging campaign of false statements and harassing actions against Browne to further their personal agendas against her. Ultimately, City of Valparaiso, Indiana, police obtained a warrant for Browne's arrest, Browne was charged in state court with distribution of an intimate image, and a protective order issued on October 14, 2019, barring Browne from contacting Waldo. The criminal charges were dismissed without prejudice on January 14, 2020, and the protective order was dismissed by agreement on January 15, 2020, with the parties agreeing not to contact each other.

However, the dispute continues. Browne filed her initial complaint in this case on May 13, 2020, seeking damages and injunctive relief. On May 15, 2020, Hearn and Waldo "traveled together" to Virginia to file for another protective order, "based on the same allegations" made in the Indiana court.

After a previous order on the instant motion to dismiss, claims remain pending against Hearn for slander (Count VIII), slander per se (Count IX), intentional infliction of emotional distress (IIED) (Count X), and false light (Count XII). Hearn seeks to dismiss these claims, arguing that Browne has failed to state a claim for which relief can be granted. Hearn also argues that she is protected by privilege.

ANALYSIS
Count VIII: Slander

Under Indiana law, slander is a form of defamation. See Baker v. Tremco Inc., 917 N.E.2d 650, 657 (Ind. 2009). "To establish a claim of defamation, a 'plaintiff must prove the existence of

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'a communication with defamatory imputation, malice, publication, and damages.'" Dugan v. Mittal Steel USA Inc., 929 N.E.2d 184, 186 (Ind. 2010) (quoting Trail v. Boys & Girls Clubs of N.W. Ind., 845 N.E.2d 130, 136 (Ind.2006)).

Where the dispute is between private individuals and is not related to a matter of public concern, however, malice is not a required element. Charles v. Vest, 90 N.E.3d 667, 672 (Ind. Ct. App. 2017). "Speech is on a matter of public concern if it is addressed to any matter of political, social, or other concern to the community, as determined by its content, form, and context." Love v. Rehfus, 946 N.E.2d 1, 9 n.6 (Ind. 2011) (citing Connick v. Myers, 461 U.S. 138, 146-48 (1983)). Whether the alleged defamation is related to matter of public concern is a question of law. Journal-Gazette Co. v. Bandido's, Inc., 712 N.E.2d 446, 471 (Ind. 1999) (Boehm, J., concurring).

Hearn and Browne dispute whether three statements allegedly made by Hearn can support a claim of defamation, which the Court refers to as the ¶ 54, ¶ 56, and ¶ 57 statements. Hearn contends that all three statements are opinion statements and therefore not defamatory. Hearn also argues that Browne has not sufficiently pled that Hearn knew her ¶ 57 statement to be false.

The ¶ 54 statement is Hearn allegedly "represent[ing] to media outlets that Browne's request for a hearing on the protective order was frivolous and past the filing deadline." (Am. Compl. ¶ 54, ECF No. 20). The alleged ¶ 56 statement is "[k]arma bit [Browne] yesterday and will continue to do so." Id. at ¶ 56. The alleged ¶ 57 statement is "[t]he harassment by Browne continues." Id. at ¶ 57. The ¶ 56 and ¶ 57 statements were allegedly made to the media.

The three statements above are related to the dispute between Browne and Waldo and the protective order litigation that arose out of that dispute. This is not a matter of public or general concern. Though Browne identifies herself in her complaint as "a published author . . . with an online social media presence," it does not appear that Browne is pervasively well-known or has

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thrust herself into the limelight on the underlying issue such that she is not a private individual. See Journal-Gazette Co., 712 N.E.2d at 454.

Accordingly, malice need not be shown. Hearn does not argue that Browne has failed to meet either the publication or damages elements of her defamation claim, so the only issue to resolve is whether Browne has alleged that Hearn made communications with defamatory imputations. If she has, then Hearn's motion must be denied.

"A statement is defamatory if it tends to harm a person's reputation by lowering the person in the community's estimation or deterring third persons from dealing or associating with the person." Hall v. Shaw, 147 N.E.3d 394, 401 (Ind. Ct. App.), transfer denied, 160 N.E.3d 517 (Ind. 2020) (quoting Dugan v. Mittal Steel USA Inc., 929 N.E.2d 184, 186 (Ind. 2010)). "Any statement actionable for defamation must not only be defamatory in nature, but false." Trail v. Boys & Girls Clubs of Nw. Indiana, 845 N.E.2d 130, 136 (Ind. 2006). Hearn contends that all of the identified statements are merely "opinions" and not defamatory. But, even if the statements are opinions, the analysis does not end. "Rather, the dispositive question is whether a reasonable fact finder could conclude that the statement implies facts which may be proven true or false." McQueen v. Fayette Cty. Sch. Corp., 711 N.E.2d 62, 66 (Ind. Ct. App. 1999) (citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 21 (1990)). "[I]f a statement is capable of two meanings, one libelous and one not, the...

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