Hahn v. City of Kenner
| Decision Date | 20 October 1997 |
| Docket Number | No. CIV.A. 96-2425.,CIV.A. 96-2425. |
| Citation | 984 F.Supp. 436 |
| Parties | P.J. HAHN v. The CITY OF KENNER, et al. |
| Court | U.S. District Court — Eastern District of Louisiana |
Gerald Joseph Nielsen, Muriel O. Van Horn, Susan Annette Weldon, Nielsen Law Firm, Metairie, La, James H. Brown, Jr., Edward F. Kohnke, IV, Frilot, Partridge, Kohnke & Clements, LC, New Orleans, LA, for Kenner City, Anthony Lombard.
Gerald Joseph Nielsen, Muriel O. Van Horn, James H. Brown, Jr., Edward F. Kohnke, IV, for Nick Congemi.
H. Alston Johnson, Phelps, Dunbar, LLP, Baton Rouge, LA, Harry A. Rosenberg, Maria Nan Alessandra, Phelps, Dunbar, LLP, New Orleans, LA, Thomas Glenn Buck, Robert Edward Williams, IV, Blue, Williams, LLP, Metairie, LA, for Ken Hollis.
ORDER AND REASONS
The issue before the Court is Defendant Kendrick Hollis' motion for summary judgment. For the reasons stated below, the motion for summary judgment is GRANTED as it pertains to any 42 U.S.C. § 1983 claims, and DENIED, pending further deposition and pleading, as to plaintiff's state law defamation claim.
Plaintiff P.J. Hahn's claim concerns statements made over the air by State Senator Kendrick Hollis on a June 6, 1996 radio show hosted by Keith Rush. The pertinent portion of the show discussed Hahn's March 7, 1996 appointment to the East Jefferson Levee District Board by Governor Mike Foster, and his subsequent failure to be confirmed during the month of May by the Louisiana Senate. According to Hahn's deposition, uncontroverted for the purposes of this summary judgment motion, some time after 9:00 a.m. on June 6, Hahn called Rush to respond to comments Rush had made about him on the air. Hahn proceeded to engage in an on-the-air dialogue with Rush in connection with Hahn's nomination and failed confirmation. At some point during the broadcast, a time which Hahn described as "a lot of conversation," Hahn Deposition at 737, Hahn suggested, as to the matter of his Levee Board nomination, that Rush "talk to Ken Hollis about that." Id. Rush subsequently called Hollis.
After Hahn had hung up, but while he was still listening, Hollis returned the call. During a brief on-the-air conversation with Rush, Hahn claims that the Senator told the listening audience:
Look Keith, all I'm going to say about this is that there is no way we could put a guy on the Board that has four felonies, that has assaulted a woman in that house, held his family at bay, and when he walks out of his house, the police have to wrestle him to the ground and they almost shoot him. To me, he's dangerous to society. Hahn Deposition at 743.
Hahn claims that these remarks defamed him. Hahn seeks recovery under both 42 U.S.C. § 1983 and state defamation law. Hollis disputes the accuracy of Hahn's version, but accepts Hahn's account for the purpose of summary judgment. He asserts several defenses and immunities as to both the Section 1983 and state law claims.1
Summary judgment will be granted only if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, show that there is no genuine issue as to any material fact and that the defendant is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56. "Rule 56 mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish an essential element of that party's case, and on which that party will bear the burden of proof at trial." Willis v. Roche Biomedical Laboratories, Inc., 61 F.3d 313, 315 (5th Cir.1995). If the movant demonstrates the absence of a genuine issue of material fact, "the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial." Id. "[A] dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
The burden of demonstrating the existence of a genuine issue is not met by "metaphysical doubt" or "unsubstantiated assertions." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)). The Court must "resolve factual controversies in favor of the nonmoving party, but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Id. The Court does not, "in the absence of proof, assume that the nonmoving party could or would prove the necessary facts." Id. If the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, no genuine issue exists for trial. Matsushita, 475 U.S. at 588, 106 S.Ct. at 1356-57.
Summary judgment in a defamation case raises special issues. Defamation is a state law claim. Under Louisiana law, "summary judgment is favored in defamation cases." Romero, M.D. v. Thomson Newspapers (Wisconsin), Inc., 648 So.2d 866, 870 (La.1995). It may appear then that the "standards used for summary judgment are somewhat higher in defamation suits," Spears v. McCormick, 520 So.2d 805, 808 (La.App. 3rd Cir.1987), and defamation plaintiffs bear "a burden of proof which is more onerous than usual." Dwight W. Andrus Ins., Inc. v. Abellor Corp., 482 So.2d 1092 (La.App. 3rd Cir.1986). However, this Circuit has noted that following Louisiana law for summary judgment in defamation cases is "a wrong turn." Doe v. Doe, 941 F.2d 280, 287 (5th Cir.1991). "Federal courts ... are to employ the summary judgment standard of Fed.R.Civ.P. 56." Id. The federal standard in cases involving defamation of a public figure is, however, different from other defamation cases. A public figure must prove actual malice by clear and convincing evidence in order to recover for a defamation claim. New York Times v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 725-26, 11 L.Ed.2d 686 (1964). Thus, "the New York Times requirement of clear and convincing evidence must be considered on a motion for summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 244, 106 S.Ct. 2505, 2508, 91 L.Ed.2d 202 (1986). The "appropriate summary judgment question" then becomes "whether the evidence in the record could support a reasonable jury finding that the plaintiff has shown actual malice by clear and convincing evidence." Id. at 256, 106 S.Ct. at 2514.
Before addressing Hollis' grounds for summary judgment, there are two preliminary issues to address. The first issue is whether, under federal law, Hahn is to be considered a public figure for purposes of the defamation analysis. The parties discuss in great detail whether Hahn's interim appointment to the Levee Board, the attendant confirmation process, and the surrounding controversy would make him a general purpose public figure, a limited purpose public figure, or neither. For the defamation analysis, the Court need only consider whether, for the duration of Keith Rush's radio program on June 6, 1996 Hahn was a public figure. Individuals can become limited purpose public figures for a limited range of issues by "`thrust[ing] themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved,' or because they `voluntarily inject [themselves] or [are] drawn into a particular public controversy.'" Trotter v. Jack Anderson Enterprises, Inc., 818 F.2d 431, 433 (5th Cir.1987) (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 351, 94 S.Ct. 2997, 3012-13, 41 L.Ed.2d 789 (1974)) (alteration in original). Such a "difficult determination" is a "matter of law," based on the three-step test that:
(1) The controversy at issue must be public both in the sense that people are discussing it and people other than the immediate participants in the controversy are likely to feel the impact of its resolution; (2) the plaintiff must have more than a trivial or tangential role in the controversy; and (3) the alleged defamation must be germane to the plaintiff's participation in the controversy. Trotter, 818 F.2d at 433-34.
Hahn called the radio station hours before Hollis returned Rush's call and thus voluntarily injected, thrust, or at the very least allowed himself to be drawn into the particular public controversy. It was only after Hahn urged Rush to "talk to Ken Hollis about that," that Hollis was contacted and dragged into the on-the-air debate. Hahn Deposition at 738. Turning to the three-part test, citizens in the Levee Board district would likely feel the impact of a leadership change; Hahn had more than a tangential role in the controversy, whether defined as the larger battle over Hahn's confirmation or the debate on Rush's show; and the alleged defamation regarding Hahn was germane to the topic of conversation that day. Thus Hahn can not avoid being treated as a limited purpose public figure, at least for the purpose of Hollis' comments on Keith Rush's radio show.
The second preliminary issue is Hollis' liability under 42 U.S.C. § 1983. It is unclear from the pleadings if Hahn still asserts a Section 1983 action against Hollis in conjunction with the allegedly defamatory remarks. However, since both parties analyze the standard for qualified immunity in Section 1983 cases in their motions on summary judgment, this Court will assume that such a claim is still asserted. As discussed more fully in this Court's August 27, 1997 Order and Reasons in this case, 984 F.Supp. 424, for "damage to an individual's reputation as a result of defamatory statements made by a state actor" to be actionable under ...
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...denied, 410 So.2d 760 (La.1981), cert. denied, 457 U.S. 1132, 102 S.Ct. 2957, 73 L.Ed.2d 1349 (1981). See also, Hahn v. City of Kenner, 984 F.Supp. 436, 441 (E.D.La.1997). What constitutes an abuse of the right of freedom of speech is, in part, controlled by La. C.C. art. 2315 and the law o......