Clark v. Time Inc.

• Decision Date: 16 March 2017
• Docket Number: Case No. 15–9090–DDC–KGG
• Citation: 242 F.Supp.3d 1194
• Parties: Terry J. CLARK, Plaintiff, v. TIME INC. and Heartland Golf Development II, LLC, Defendants.
• Court: U.S. District Court — District of Kansas

242 F.Supp.3d 1194

Terry J. CLARK, Plaintiff,

v.TIME INC. and Heartland Golf Development II, LLC, Defendants.

Case No. 15–9090–DDC–KGG

United States District Court, D. Kansas.

Signed March 16, 2017

Daniel A. Williams, Overland Park, KS, for Plaintiff.

Terry J. Clark, Shawnee, KS, pro se.

Bernard J. Rhodes, Lathrop & Gage, LLP, Timothy R. West, Berkowitz Oliver Williams Shaw & Eisenbrandt, LLP, Kansas City, MO, for Defendants.

MEMORANDUM AND ORDER

Daniel D. Crabtree, United States District Judge

Hyperbole and the game of golf are not strangers to one another.

After a particularly good round, a golfer might describe his long and accurate drives as "pointing ... lasers right at the ... flag all day long."¹ On another day, after a less successful outing, the same golfer might lament repeated errant shots into bunkers, claiming he spent the day on the beach. A course with greens running high on the Stimpmeter² might lead to complaints about the vagaries of slick greens. A golfer whose wild tee shots consistently had landed his ball in the trees might say that he spent most of the day in jail. And, a golfer might describe a poorly maintained course as a goat ranch.

This case arises from the use of hyperbole in an article about a golf course. On May 29, 2014, defendant Time Inc. published an article on its GOLF.com website that criticized the former General Manager of the Hillcrest Country Club in Kansas City, Missouri, by referring to him as Vlad the Impaler.³ Although the article does not mention him by name, plaintiff Terry J. Clark served as Hillcrest's General Manager. And, the parties stipulate that the article's references to Vlad the Impaler are references to Mr. Clark.

This article gives rise to the claims asserted in this lawsuit. Plaintiff contends that the article's contents—including the Vlad the Impaler hyperbole—are false statements that have damaged his reputation and emotional wellbeing. He asserts two claims against defendants Time Inc. and Heartland Golf Development II, LLC ("Heartland Golf"). Both claims arise under Kansas law—one claims defamation and the other claims intentional infliction of emotional distress. Defendants move for summary judgment against both (Docs. 31, 33). For reasons explained below, the court grants defendants' motions because the summary judgment facts present no genuine issue warranting a trial on either claim.

Before turning to defendants' summary judgment motions, the court first addresses the other pending motions in this case. Plaintiff has filed two motions to strike (Docs. 58, 59). They ask the court to strike defendants' summary judgment motions, memoranda, and replies because defendants never served him with a Notice to Pro Se Litigant Who Opposes A Motion For Summary Judgment, as D. Kan. Rule 56.1(f) requires. The court denies plaintiff's motions for reasons set forth in the first section below. Defendants respond with three motions to strike of their own (Docs. 50, 52, 53). They ask the court to strike certain materials that plaintiff has submitted with his responses to defendants' summary judgment motions. For reasons explained below, in the second section, the court grants in part and denies in part defendants' motions to strike.

I. Plaintiff's Motions to Strike

Plaintiff moves to strike defendants' summary judgment motions, memoranda in support, and replies because, he asserts, defendants never served him with a Notice to Pro Se Litigant Who Opposes A Motion For Summary Judgment ("Pro Se Notice"), and our court's local rules required them to serve such a notice. D. Kan. Rule 56.1(f) provides:

Any represented party moving for summary judgment against a party proceeding pro se must serve and file as a separate document, together with the papers in support of the motion, the following "Notice To Pro Se Litigant Who Opposes a Motion For Summary Judgment" with the full texts of Fed. R. Civ. P. 56 and D. Kan. Rule 56.1 attached.

Defendants assert that they did not need to serve plaintiff with the Pro Se Notice because, when they filed their summary judgment motions, plaintiff was represented by counsel. To understand this argument, some more background information is required.

Plaintiff filed this lawsuit through his chosen counsel on May 28, 2015. His counsel represented him in the case through defendants' filing of their summary judgment motions on July 15, 2016. Our court's local rules required plaintiff to file his responses to defendants' summary judgment motions within 21 days, or by August 5, 2016. See D. Kan. Rule 6.1(d) (providing a 21–day response time for responses to dispositive motions). Plaintiff did not file any responses on August 5. Instead, plaintiff filed a "Motion Requesting Permission From the Court to Remove Plaintiff's Attorney Dan Williams." Doc. 35. Plaintiff explained that he and his attorney disagreed about how to proceed with the case. Id. at 1. Plaintiff also explained that he had asked his attorney to withdraw from the case but he hadn't done so. Id. Plaintiff thus asked the court to order his attorney's removal from the case. Id. Plaintiff simultaneously filed a Motion for Extension of Time seeking an extension until August 22 to respond to defendants' summary judgment motions. Docs. 37, 38.

Magistrate Judge Kenneth G. Gale convened a telephone conference with the parties on August 9, 2016. During that conference, plaintiff's attorney moved to withdraw, and Judge Gale granted the motion. Doc. 41. Judge Gale also granted plaintiff's motion requesting the removal of his attorney. Id. Since then, plaintiff has proceeded pro se.⁴ The court granted plaintiff an extension until August 22 to file his responses to defendants' summary judgment motions. Doc. 44. Plaintiff then timely filed his responses pro se. Docs. 45, 46.

So, as these facts demonstrate, defendants are correct. Plaintiff was represented by counsel when defendants filed their summary judgment motions. And so, D. Kan. Rule 56.1(f) did not require them to serve plaintiff with the Pro Se Notice "together with their papers in support of the motion."

To be sure, after plaintiff's counsel withdrew from the case, plaintiff became a pro se party opposing summary judgment. While our rule did not require defendants to serve plaintiff with the Pro Se Notice at that time, defendants might have fostered the rule's purpose—informing pro se parties about summary judgment procedures—by serving a Pro Se Notice even though the rule did not require it explicitly. But, neglecting to do something that our rules did not require does not warrant the harsh sanction of striking defendants' summary judgment motions. This conclusion is especially appropriate here because the record plainly establishes that plaintiff was not harmed by the absence of the Pro Se Notice. Indeed, plaintiff specifically cites D. Kan. Rule 56.1 in one of his responses to defendants' summary judgment motions. See Doc. 47 at 7 ("Pursuant to Kansas District Court Rule 56.1, Plaintiff Terry J. Clark submits the following memorandum in response to Defendant Time Inc.'s uncontroverted facts...."). He also responded to defendant Heartland Golf's explication of the summary judgment standard—one that included a citation to Fed. R. Civ. P. 56 —by stating that he "agrees with the standard." Doc. 46 at 24.

Plaintiff's responses also complied with the federal and local rules governing summary judgment. Plaintiff has responded to each one of defendants' numbered statements of fact, stating whether he controverts the fact or not. See D. Kan. Rule 56.1(b)(1) (explaining that "[a] memorandum in opposition to a summary judgment motion must begin with a section containing a concise statement of material facts as to which the party contends a genuine issue exists"). And, when plaintiff has controverted a proposed fact, he has cited the summary judgment evidence that, he contends, makes the fact a disputed one, just as our local rule requires. See id. ("Each fact in dispute must be numbered by paragraph, refer with particularity to those portions of the record upon which the opposing party relies, and, if applicable, state the number of movant's fact that is disputed."); see also Fed. R. Civ. P. 56(c)(1) (requiring a party "asserting that a fact ... is genuinely disputed" to support the assertion with "particular parts of material in the record" or "showing that the materials cited do not establish the absence ... of a genuine dispute").

Plaintiff also has provided additional statements of fact that, he contends, preclude summary judgment. This submission is precisely what D. Kan. Rule 56.1(b)(2) contemplates. See D. Kan. Rule 56.1(b)(2) ("If the party opposing summary judgment relies on any facts not contained in movant's memorandum, that party must set forth each additional fact in a separately numbered paragraph, supported by references to the record...."). And, plaintiff appended summary judgment materials to each of his responses, the approach required by our local rules. See D. Kan. Rule 56.1(d) (explaining how to present the factual materials that the opposing party uses to base his opposition). Plaintiff attached 22 separately numbered exhibits to his response to defendant Heartland Golf's summary judgment motion and 14 separately numbered exhibits to his response to defendant Time Inc.'s summary judgment motion. See Docs. 46, 47.⁵

On this procedural record, plaintiff cannot credibly complain that any omission of a Pro Se Notice prejudiced his ability to respond to the summary judgment motions. He has followed the appropriate procedures under the rules governing summary judgment. Although the ultimate outcome of the summary judgment motions is an adverse one for plaintiff, the court reaches this decision after considering the merits of his claims. In short, the summary judgments awarded by this order do not result from plaintiff's ignorance of the federal or local summary judgment rules, or his failure to follow them. The court thus denies plaintiff's ...