Browne v. Hearn
| Decision Date | 14 May 2021 |
| Docket Number | CAUSE NO.: 2:20-CV-196-JVB-APR |
| Parties | KATHY BROWNE, Plaintiff, v. ANNA HEARN, et al., Defendants. JENNIFER WALDO, Counter-Claimant, v. KATHY BROWNE, Counter-Defendant. |
| Court | U.S. District Court — Northern District of Indiana |
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 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'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 hasthrust 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 case should properly go to the jury." Near E. Side Cmty. Org. v. Hair, 555 N.E.2d 1324, 1329-30 (Ind. Ct. App. 1990).1
The ¶ 54 statement is that Browne's request for a hearing on the protective order was frivolous and past the filing deadline. The statement is not couched as an opinion, and whether therequest was past the filing deadline is a fact which may be proven true or false. Browne alleges in ¶ 54 that Hearn knew Browne had not yet been served. The inference to this allegation is that the request was not untimely. Filing untimely requests during litigation could lower the community's estimation of Browne. Therefore, this statement, as alleged, is a communication with defamatory imputation.
The ¶ 56 statement is "[k]arma bit [Browne] yesterday and will continue to do so." Browne alleges that the statement was made "regarding the proceedings, which were based on misrepresentations, that were then pending against Browne," but Browne does not allege that the karma statement itself was false. The lack of allegation of falsity is sufficient grounds on which to find that this communication does not carry defamatory implication. Furthermore, the Court has serious doubts as to whether statements about the actions of karma can be proven true or false. This is not an actionable statement.
The ¶ 57 statement that Browne's harassment of Waldo continues, like the ¶ 54 statement, is not couched as an opinion. It is a factual statement that could be proven true or false. Hearn's brief mention of the term "harassment" being unactionable hyperbole is an unsupported—and therefore waived—argument. See Crespo v. Colvin, 824 F.3d 667, 674 (7th Cir. 2016). The statement that Browne continued to harass Waldo could lower the community's estimation of Browne. The allegation is that Hearn made this statement despite knowing it to be false, which carries an inference that the statement is false, so this statement, as alleged, is a communication with defamatory imputation. Hearn argues that the entry of a protective order shows establishes that Browne harassed Waldo. However, the statement at issue is that the harassment continues, which is not proven true by a showing that past harassment occurred.
Hearn argues that Browne has not sufficiently alleged that Hearn knew the ¶ 57 statement was false. The speaker's knowledge of a statement being false is not an element, since as found above, malice is not a required element due to the dispute being between private individuals and not on a matter of public concern. Truth is a defense to a defamation claim, see West v. J. Greg Allen Builder, Inc., 92 N.E.3d 634, 646 (Ind. Ct. App. 2017), but at this procedural posture the Court looks only at the allegations in the complaint, and Browne has not alleged that the statements are true.
Hearn's motion to dismiss the slander claim is denied based on the ¶ 54 and ¶ 57 statements. The ¶ 56 statement is not actionable for slander.
Count IX: Slander Per Se
"One type of defamation action, alleging defamation per se, arises when the language of a statement, without reference to extrinsic evidence, constitutes an imputation of (1) criminal conduct, (2) a loathsome disease, (3) misconduct in a person's trade, profession, office, or occupation, or (4) sexual misconduct." Dugan v. Mittal Steel USA Inc., 929 N.E.2d 184, 186 (Ind. 2010). For a defamation per se claim, damages are presumed. Id.
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