Damon v. Moore
| Decision Date | 21 March 2008 |
| Docket Number | No. 07-1365.,07-1365. |
| Citation | 520 F.3d 98 |
| Parties | Peter J. DAMON; Jennifer Damon, Plaintiffs, Appellants, v. Michael MOORE; Harvey Weinstein; Robert Weinstein; Miramax Film Corp.; The Fellowship Adventure Group, LLC; Lions Gate Films, Inc.; IFC Films, LLC; Showtime Networks, Inc.; Cinemanow, Inc.; Westside Productions LLC (sued as Westside Productions Inc.); and NBC Universal, Inc. (sued as National Broadcasting Co., Inc.), Defendants, Appellees. |
| Court | U.S. Court of Appeals — First Circuit |
Donald J. Feerick, Jr., with whom Philip D. Moran and Feerick Lynch MacCartney PLLC, was on brief, for appellants.
Jonathan M. Albano, with whom Carol E. Head and Bingham McCutchen LLP, was on brief, for appellees.
Before TORRUELLA and HOWARD, Circuit Judges, and DELGADO-COLÓN,* District Judge.
Plaintiff-appellant, Sergeant Peter J. Damon ("Damon"), a former Sergeant in the Army Reserves, appeals from the dismissal of his defamation claim stemming from the non-consensual use of an interview he conducted for NBC Nightly News ("NBC") in the documentary "Fahrenheit 9/11" ("documentary"). According to Damon, defendants-appellees ("Appellees"), and more specifically, Michael Moore ("Moore"), the creator, writer, director, producer and narrator of the documentary, portrayed Damon as supporting the documentary's anti-war and anti-Commander-in-Chief message by using and placing in the documentary, without his consent, a sixteen-second segment of an interview he previously conducted with NBC. In dismissing the defamation claim, the district court found that Damon's appearance in the documentary was not reasonably susceptible of a defamatory meaning/interpretation. For the following reasons, we affirm the dismissal.1
Damon was an Army Reserve Sergeant who served in the National Guard's 126th Aviation Unit based at Camp Edwards on Cape Cod, Massachusetts. On October 21, 2003, while on active duty at the National Guard facility in Balad, Iraq, a tire on a Black Hawk helicopter exploded while he and another reservist were servicing the aircraft. As a result of the explosion, Damon lost his right arm near the shoulder and his left arm above the wrist; the Army reservist who was assisting Damon was killed. Following the incident, Damon was transported to Walter Reed Army Medical Center in Washington, D.C. ("Walter Reed"), where he was treated by Army medical personnel with a new pain blocker.
On October 31, 2003, while Damon was awaiting surgery, an anesthesiologist asked him to do an interview with Brian Williams of NBC about the new pain blocker. Although heavily sedated, he agreed to the interview. In the NBC clip, Damon appears on the screen for less than thirty seconds, speaking to an interviewer regarding the new pain blocker with his injured arms in bandages. The interview consisted of the following colloquy:
Brian Williams: Sergeant, how are you doing?
Damon: Pretty good.
Corp. Nelson: The stories get more wrenching from room to room. Sergeant Peter Damon from Brockton, Massachusetts, lost both arms.
Damon: Like I still feel like I have hands.
Corp. Nelson: Yeah.
Damon: And the pain is like my hands are being crushed in a vice. But they do a lot to help it. And they take a lot of the edge off of it. And it makes—makes it a lot more tolerable, you know, so I can just be a lot more comfortable. I—I can't imagine not having them.
* * *
Brian Williams: And one more thing, if you're looking for anti-war sentiment, you won't find it on Ward 57 of Walter Reed. These men, with catastrophic wounds are, to a man, completely behind the war effort. In fact, many want to go back. They miss their units, and they miss their buddies. It is hard to look at their wounds sometimes. It is impossible not to admire their bravery.
NBC aired Damon's interview as part of its evening news broadcast.
While Damon consented to the NBC interview and subsequent broadcast, he neither consented to the use of the interview in another broadcast, nor was he ever advised that Appellees were considering using his interview for anything other than the original broadcast. Notwithstanding, Moore was allowed to place Damon in the documentary.
The allegedly defamatory portion of the documentary contains the following statement:
Moore: While Bush was busy taking care of his base and professing his love for our troops, he proposed cutting combat soldiers' pay by 33% and assistance to their families by 60%. He opposed giving veterans a billion dollars more in health care benefits, and he supported closing veterans hospitals. He tried to double the prescription drug costs for veterans and opposed full benefits for part-time reservists. And when Staff Sargent Brett Petriken from Flint was killed in Iraq on May 26th, the Army sent his last paycheck to his family, but they docked him for the last five days of the month that he didn't work because he was dead.
Rep. McDermott: They say they're not gonna leave any veteran behind, but they're leaving all kinds of veterans behind.
* * *
(Video of Walter Reed Hospital)
Veteran (in wheelchair) To say that we're forgotten—I know we're not forgotten. But missed? Yes. Yes, you know there's a lot of soldiers that have been missed, you know, they've been skipped over. Um, that didn't get the proper coverage that they deserve.
Veteran: They have the death toll but they're not showing the amount of people that have been injured and been amputated because of the injuries, you know.
Subtitle: (Nearly 5,000 soldiers wounded in the first 13 months of the war.)
Damon: Like I still feel like I have hands.
Voice: Yeah.
Damon: And the pain is like my hands are being crushed in a vice. But they do a lot to help it. And they take a lot of the edge off of it. And it makes—makes it a lot more tolerable.
According to Damon, the documentary was an attack upon the integrity of the Commander-in-Chief and the war effort, and it denounced the United States' military action in Iraq by, among other things, "attacking the credibility of the Commander in Chief of the United States Armed Forces about the justification for the war, its cost and consequences. . . ." Accordingly, Damon alleges that his unwitting appearance in the documentary falsely portrays him—and has been interpreted by members of the military and veteran communities —as sharing, adopting and endorsing Moore's attack on the President and the war effort.
Damon brought suit in Superior Court of the Commonwealth of Massachusetts on May 26, 2006. On August 28, 2006, Appellees removed the case, on diversity grounds, to the United States District Court for the District of Massachusetts. Specifically, Damon sued for common law appropriation of name, portrait and picture; statutory right to privacy; defamation; intentional infliction of emotional distress; and loss of consortium. On October 6, 2006, Appellees filed a motion to dismiss the complaint for failure to state a claim upon which relief could be granted or, in the alternative, for summary judgment. On December 20, 2006, after a hearing, the district court granted Appellees' motion to dismiss on all counts. This appeal followed.
We review the district court's decision to dismiss de novo. Stanton v. Metro Corp., 438 F.3d 119, 123-24 (1st Cir.2006) (citing SFW Arecibo, Ltd. v. Rodríguez, 415 F.3d 135, 138 (1st Cir.2005)). In so doing, we accept as true the well-pleaded factual allegations of the complaint, drawing all reasonable inferences in favor of the non-moving party. Id. at 124.
The Supreme Court recently clarified the law with respect to a plaintiff's pleading requirement in order to survive a Rule 12(b)(6) motion. Bell Atl. Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In Twombly, the Court stated that "a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 1964-65 (internal citation and quotation marks omitted). Further, the Court explained that the "[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true." Id. at 1965 (internal citations omitted). In so doing, the Court retired the oft-cited language of Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief", characterizing it as one "best forgotten as an incomplete, negative gloss on an accepted pleading standard." Twombly, 127 S.Ct. at 1969. Nevertheless, as explained below, our disposition of Damon's claim does not depend upon the nuances of Twombly's effect on the dismissal standard.
Damon argues that the district court erroneously failed to conclude that his non-consensual appearance in the documentary was reasonably capable of a defamatory meaning in the military and veteran communities to which he belongs. More specifically, Damon contends that his appearance in the documentary portrays him as endorsing the political views of Moore; views that are contrary to his own and repugnant in the military and veteran community.
To prevail on a defamation claim "under Massachusetts law, a plaintiff must show that the defendant was at fault for the publication of a false statement of and concerning the plaintiff which was capable of damaging his or her reputation in the community, and which either caused economic loss or is actionable without proof of economic loss."2 Stanton, 438 F.3d at 124; Amrak Prods., Inc. v. Morton, 410 F.3d 69, 72 (1st Cir.2005); ...
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