Filippo v. Lee Publications, Inc.

• Decision Date: 30 April 2007
• Docket Number: No. 2:05 CV 64.,2:05 CV 64.
• Citation: 485 F.Supp.2d 969
• Parties: Lita FILIPPO, Plaintiff, v. LEE PUBLICATIONS, INC., a subsidiary of Lee Enterprises, d/b/a The Times, Defendant.
• Court: U.S. District Court — Northern District of Indiana

485 F.Supp.2d 969

Lita FILIPPO, Plaintiff, v. LEE PUBLICATIONS, INC., a subsidiary of Lee Enterprises, d/b/a The Times, Defendant.

No. 2:05 CV 64.

United States District Court, N.D. Indiana, Hammond Division.

April 30, 2007.

Mark T. Van Der Molen, Attorney at Law, Merrillville, IN, for Plaintiff.

Charles D. Tobin, PHV, Holland & Knight LLP, Washington, DC, Eric J. Dorkin, William M. Stevens, Holland & Knight LLP, Chicago, IL, for Defendant.

OPINION AND ORDER

MOODY, District Judge.

This matter is before the court on defendant's motion for summary judgment (docket # 33), motion to strike (docket # 48), and motion for oral argument (docket # 36). For the reasons set forth below, the motion for summary judgment is granted. Both the motion to strike and the motion for oral argument are denied as moot.

I. BACKGROUND

Between January and August of 2003, defendant Lee Publications, Inc., publisher of the Northwest Indiana newspaper The Times, printed news articles, editorial opinions, and cartoons involving plaintiff Lita Filippo. Plaintiff is a resident of Lake County, Indiana, who works in insurance sales. When the publications appeared in The Times, plaintiff served as vice-chairman of the Partnership for a Drug-Free Lake County ("the Partnership"), the local arm of the Governor's Commission for a Drug-Free Indiana. The Partnership was funded, in part, by fees assessed on residents convicted of drug and alcohol violations. The Partnership's activities included "Red Ribbon" programs that involved `presentations, contests, and rallies for local children in an effort to educate them about the dangers of drug and alcohol abuse. Plaintiff's position on the Partnership board was unpaid, and she served on a volunteer basis.

On January 25, 2003, Timothy Gardenhire, an officer of the St. John Police Department who was participating in the Lake County Drunk Driving Task Force, pulled plaintiff over after noticing plaintiff's vehicle speeding and weaving. Plaintiff initially told Officer Gardenhire that she had not been drinking, but then admitted that she had one glass of wine. According to the incident report, plaintiffs speech was slurred, her eyes were bloodshot and watery, her face was flushed and red, and there was a strong odor of alcohol on plaintiffs breath. The report also indicated that plaintiff asked Officer Gardenhire not to arrest her because she was simply trying to follow her friend home. Officer Gardenhire arrested her after she refused to take a breath test. Officer Gardenhire's report states that plaintiff was yelling, crying, and uncooperative and told Officer Gardenhire that her arrest would cost him his job. Plaintiff maintains that she did not behave in such a manner. She also attests that the arrest was a "set up" and that the strong smell of alcohol emanating from her vehicle on the night of her arrest was from a drink that was spilled on her at the party she had attended that evening. (Filippo Dep. 138-40.) Plaintiff was released from custody early the next morning. The charges against plaintiff were later dropped.

The first article related to plaintiffs arrest appeared in The Times on January 28, 2003, a few days after the arrest took place. The article stated that plaintiff, a community anti-drug and alcohol activist, was arrested for drunk driving. Officer Gardenhire was quoted as stating that plaintiff was "the most obnoxious drunken female I have ever arrested." (Def.'s Ex. 9.) In February of the same year, The Times published additional articles about plaintiff, drawing a parallel between plaintiff s purported behavior during her drunk driving arrest and an incident that occurred in May of 2002 when plaintiff allegedly tried to board a riverboat during a non-boarding time and behaved contentiously when Jennifer McDonald, an Indiana State Trooper, intervened. In July, an additional editorial article and cartoon appeared in The Times, calling for plaintiffs resignation from the Partnership board and suggesting that plaintiff drop the defamation lawsuit she had filed against the agencies involved in her drunk driving arrest. The cartoon depicted Filippo next to O.J. Simpson; Filippo wore a button reading: "Just say whatever to drinking and driving."¹

Plaintiff alleges that these publications defamed her by placing her in a false, damaging, and negative light. Plaintiff further alleges that her insurance business suffered because of the publicity and that jail inmates sent her harassing letters after reading the articles. Defendant seeks summary judgment, arguing that some of the publications constitute opinions protected by the First Amendment and that plaintiff does not have sufficient evidence that the articles were published with actual malice.

II. LEGAL STANDARD

Summary judgment, a mechanism rooted in FEDERAL RULE OF CIVIL PROCEDURE 56, is "an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted). When considering a motion for summary judgment, the court must construe all facts in a light most favorable to the non-moving party and draw all legitimate inferences in his favor. Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir.1994). A court's role is not to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but instead to determine whether there is a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Doe, 42 F.3d at 443.

The party seeking summary judgment, the movant, bears the initial responsibility of informing the court of the basis for his motion and identifying the portions of the record which demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. "[T]he burden on the moving party may be discharged by `showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." Id. at 325, 106 S.Ct. 2548. Once the moving part has met his burden, the non-moving party must identify specific facts establishing that there is a genuine issue of fact for trial. Anderson, 477 U.S. at 252, 106 S.Ct. 2505; Palmer v. Marion County, 327 F.3d 588, 595 (7th Cir.2003) (citing Celotex, 477 U.S. at 324, 106 S.Ct. 2548). In doing so, the nonmoving party cannot rest on the pleadings alone, but must present fresh proof in support of its position. Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir.1994). The. non-movant must do more than raise some metaphysical doubt as to the material facts; he must come forward with specific facts showing a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

III. DISCUSSION

A. Abandoned claims

Defendant's motion seeks summary judgment as to plaintiff's defamation claim regarding nine articles, editorials, and cartoons published by The Times. Plaintiffs response does not address three of these articles and one cartoon. Claims not addressed in a response to a motion for summary judgment are considered abandoned. White v. Gerardot, No. 1:05-CV-382, 2007 WL 541819, at *4 (N.D.Ind. Feb.15, 2007); Zimmer Tech., Inc. v. Howmedica Osteonics Corp., No. 3:02-CV-425 AS, 2007 WL 603043, at *8 (N.D.Ind. Feb.22, 2007); see Palmer, 327 F.3d at 597-98. Therefore, defendant's motion for summary judgment is granted to the extent that plaintiff's complaint alleges that she was defamed by the articles and/or cartoons appearing in the The Times on April 11, April 15, August 4, and August 28, 2003. For the same reason, summary judgment is also granted in defendant's favor as to any tort that might be implicated by plaintiff's allegations of "invasion of privacy." (See Def.'s Memo. 27.)

B. Qualified privilege (the "actual malice" standard)

The critical threshold issue is whether the "actual malice" standard first delineated in the landmark Supreme Court decision New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), applies with respect to any or all of the publications at issue in this case. In New York Times, the Court held that the First Amendment requires that a defamation plaintiff prove that a defendant acted not merely negligently but with "actual malice" when the alleged victim of defamation is a public official. The Court later held that the actual malice test also applies when the alleged victim is a public figure. Curtis Pub. Co. v. Butts, 388 U.S. 130, 155, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967).

After New York Times and Curtis, it was clear that the First Amendment of the United States Constitution would not protect a publisher by imposing the actual malice requirement on a private citizen bringing a defamation suit. However, the Court left the door open for states to afford publishers extra protection beyond that provided by the First Amendment. Gertz v. Robert Welch Inc., 418 U.S. 323, 347, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) ("the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual"); Jean v. Dugan, 20 F.3d 255, 262 (7th Cir.1994) ("it is perfectly appropriate for the states to give speakers greater protection than the United States Constitution requires"). In Journal — Gazette Co., Inc. v. Bandido's, Inc., the Indiana Supreme Court did exactly that by holding that if a defendant's speech relates to a matter of public concern or interest, then the speech is qualifiedly privileged and the plaintiff must establish that the defendant speaker acted with "actual malice," even if the plaintiff is a private individual. 712 N.E.2d 446, 452 (Ind.1999) (...