Emekekwue v. Offor

• Decision Date: 12 June 2014
• Docket Number: Civil No. 1:11–cv–01747.
• Citation: 26 F.Supp.3d 348
• Parties: Bertram EMEKEKWUE, Plaintiff v. Chinwe OFFOR, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

26 F.Supp.3d 348

Bertram EMEKEKWUE, Plaintiff

v.Chinwe OFFOR, Defendant.

Civil No. 1:11–cv–01747.

United States District Court, M.D. Pennsylvania.

Signed June 12, 2014.

Richard B. Bateman, Jr., Media, PA, for Plaintiff.

Joshua D. Bonn, Craig J. Staudenmaier, Nauman, Smith, Shissler & Hall, LLP, Harrisburg, PA, for Defendant.

MEMORANDUM

SYLVIA H. RAMBO, District Judge.

Presently before the court is Defendant's motion for summary judgment pursuant to Federal Rule of Procedure 56. For the reasons that follow, the motion will be granted, and judgment will be entered in favor of Defendant.

I. Background

A. Procedural Background

Invoking the court's diversity jurisdiction,¹ Plaintiff, Bertram Emekekwue (“Plaintiff”), brought this action in response to statements made by Defendant, Chinwe Offor (“Defendant”), in a July 19, 2011 email. (Doc. 52, ¶¶ 13–14.) The email regarded the Obosi Community Association of New York Inc.'s² (“OCA”) consideration of whether to provide financial benefits to Plaintiff's children following the death of his ex-wife, Vanessa Emekekwue. (Doc. 52, Ex. H, ¶¶ 12–13.) Plaintiff's original complaint brought claims of libel, intentional infliction of emotional distress, negligent infliction of emotional distress, and punitive damages. (Doc. 1.) On December 7, 2011, Defendant filed a motion to dismiss and brief in support, wherein she argued for dismissal of Plaintiff's complaint based on lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2), as well as for failure to state a claim under Rule 12(b)(6). (Docs. 5 & 6.)

Prior to the court's disposition of Defendant's motion to dismiss, Plaintiff filed, in accordance with Federal Rule of Civil Procedure 15(a)(1)(B), an amended complaint on December 16, 2011. (Doc. 8.) In response, Defendant filed an amended motion to dismiss on December 31, 2011. (Doc. 12.) Defendant's amended motion to dismiss and brief in support thereof contained arguments for dismissal based solely on Plaintiff's failure to state a claim pursuant to Rule 12(b)(6). Defendant did not re-raise, incorporate by reference, or otherwise mention the Rule 12(b)(2) personal jurisdiction argument in either the amended motion to dismiss or brief in support. On May 15, 2012, 2012 WL 1715066, the court granted Defendant's motion to dismiss pertaining to Plaintiff's claims for intentional infliction of emotional distress, negligent infliction of emotional distress, and punitive damages on the basis of Plaintiff's failure to state a claim, but denied the motion as it pertained to Plaintiff's defamation claim. (Doc. 17.) Noting that Defendant did not re-raise the personal jurisdiction argument, the court only addressed the arguments presented in the amended motion to dismiss. (Id. at p. 4, n. 4.)

Following the issuance of the court's memorandum and order granting in part and denying in part Defendant's motion to dismiss, Defendant filed an answer to the amended complaint on June 1, 2012. (Doc. 18.) On July 24, 2012, Defendant filed a motion for summary judgment, raising the sole issue of personal jurisdiction. (Doc. 22.) In a memorandum and order dated October 24, 2012, 2012 WL 5249414, the court denied Defendant's motion for summary judgment, finding that Defendant's failure to renew the personal jurisdiction argument in her amended motion to dismiss waived any such defense pursuant to Federal Rule of Civil Procedure 12(g) and 12(h). (Doc. 27.)

Following discovery, Defendant filed the instant motion for summary judgment on February 28, 2014. (Doc. 51.) The motion was accompanied by Defendant's statement of material facts (Doc. 52), brief in support (Doc. 53), and exhibits (Doc. 52, attachments 1–10). Defendant argues that she is entitled to summary judgment because Plaintiff failed to produce sufficient material facts to support the elements of a defamation claim and because her statements were conditionally privileged, truthful, and/or constituted non-actionable expressions of opinion. On March 21, 2014, Plaintiff filed his opposition to the motion for summary judgment (Doc. 54), brief in support thereof (Doc. 54–2), and response to Defendant's statement of facts (Doc. 52). Defendant filed a reply brief on April 4, 2014. (Doc. 56.) The motion for summary judgment is therefore fully briefed and ripe for disposition.

B. Factual Background

Plaintiff and his wife, Vanessa Emekekwue (“Vanessa”) were married and had three children. Throughout their marriage, the couple was closely involved with the OCA. In addition to regularly attending OCA meetings and events, Plaintiff was a secretary of the organization³ and Vanessa was a member of the scholarship committee. (B. Emekekwue Dep. at p. 36; see Doc. 54–14, p. 2 of 2.) In the spring of 2010, the couple divorced (Doc. 52, ¶ 3; Doc. 55, ¶ 3), and Plaintiff soon remarried (see Doc. 54–8, p. 2 of 2).

At some point during Plaintiff and Vanessa's marriage, Vanessa became ill and was being treated for cancer at Johns Hopkins Hospital. However, following their divorce, Plaintiff's employer terminated Vanessa's health insurance, ultimately resulting in her inability to continue receiving medical care at Johns Hopkins. (See Doc. 54, p. 4; B. Emekekwue Dep. at pp. 59–60.) She was referred to the Penn State Hershey Medical Center where she continued her treatment, but succumbed to her illness in 2011.

Upon the death of an OCA member, the OCA's Constitution and Bylaws (the “OCA Constitution”) (see Doc. 54–7) provides for the distribution of a death benefit in the amount of $200.00 per child (see id. at p. 14 of 15). However, as Plaintiff admits, whether divorce operates to severe one's death benefits under the OCA Constitution is a “grey area.” (See Doc. 54–2, p. 3 of 11; B. Emekekwue Dep. at pp. 55–56.) Due to this ambiguity, the president of the OCA, Anthony Obiajulu (“Mr. Obiajulu”) sent an email to OCA executive members to inquire whether it was appropriate to pay death benefits to Vanessa's children given that the Emekekwues divorced in the year prior to Vanessa's death.⁴ (Doc. 54–8; see Doc. 54–5, ¶ 6.) Mr. Obiajulu wrote, in pertinent part, as follows:

I make this proposal for your thoughtful consideration and response.

A fair interpretation of OCA bylaws is that a family membership has two components or requirements, namely, payment of family membership dues AND currently married husband and wife status. Children that are minors[, i.e., ] under 21, are deemed to be member's children, with no independent standing or obligations or rights....

Bertram Emekekwue was married to Vanessa for years during which they had three children; during this period, Bertram paid family membership dues. Then Vanessa divorced Bertram ... and Bertram officially notified OCA. Subsequently Bertram became engaged and later married. Before their divorce Bertram and Vanessa informed OCA that she had been diagnosed with cancer ; and last week she succumbed to cancer and died; on the date of Vanessa's death, Bertram had remarried.

Based on [the] above interpretation, Bertram would not be entitled to receive bereavement payment from OCA for the death of Vanessa because he no longer was husband to Vanessa on the date of her death.

Now, that having been said, and regardless of what views one holds of Bertram, positive or negative, my concern is that in good conscience we do what is right and fair, specifically, with regard to the three children Vanessa had with Bertram during their marriage and membership of OCA. Simply put, the children of our current member (Bertram) and our former late member (Vanessa) have lost their mother, Vanessa—who while a member and still alive was a regular and familiar presence at OCA meetings and events. Therefore, just as a member who loses a relative receives a $200 condolence payment, I propose that OCA make a condolence payment of $200 to each of the three children who have lost their mother.

I need the yes or no vote of each exec member on this proposal asap. Even if the majority approves my proposal, I think it would still be appropriate to submit it for ratification to the general membership at our next meeting (with proper procedure to safeguard the sensitivity of the matter both because of the novelty of the case and the amount of money involved.

(Doc. 54–8.)⁵

The treasurer of the OCA forwarded Mr. Obiajulu's email to Defendant (C. Offor Dep. at p. 27), and, in response, Defendant authored the email at issue in this case and sent it to both executive and non-executive members of the OCA⁶ (Doc. 54– 5, ¶ 16; B. Emekekwue Dep. at pp. 71–72). Defendant asserts that she was uniquely qualified to offer her opinions with regard to whether Vanessa's children should receive death benefits because, as past president of the OCA, she was intimately familiar with the constitution, bylaws, and operating procedures of the organization. (Doc. 53, p. 18; see C. Offor Dep. at pp. 56–57; Doc. 52–4, ¶ 8.) The challenged email follows in its entirety:

Obosi dalu nnu,

It has come to my attention that our President is seeking opinions on whether we can disregard our constitution and give money to late Vanessa Emekekwue's children which in effect means we are giving money to Mr[.] Bertram Emekekwue since these children are all minors.

Our constitution allows us to give money to a spouse or even children of an active member.

However, Mr[.] Bertram Emekekwue is an ex-spouse and does not qualify for any money under our constitution.

Also at the time of Vanessa's death, she had never indicated any interest in continuing her membership despite their divorce nor was she a financial member hence her children do not also get any money officially from the organization (OCA). I truly do not understand why this deserves a discussion. The constitution is very clear on this issue.

However, Vanessa actively participated in OCA and was much loved by us all. I suggest if it's possible for all of us to personally donate to a fund that will be given to her very, very dear children when they

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