Hayne v. The Innocence Project

Decision Date20 January 2011
Docket NumberCIVIL ACTION NO. 3:09-CV-218-KS-LRA
CourtU.S. District Court — Southern District of Mississippi
Memorandum Opinion and Order

For the reasons stated below, Defendants' Motion to Dismiss [36] is granted in part and denied in part. Any of Plaintiff's claims stemming from Defendants' press releases of February 8, 2008; February 15, 2008; and March 5, 2008, are dismissed with prejudice. Likewise, Plaintiff's claims for negligent infliction of emotional distress and injurious falsehood/trade libel are dismissed with prejudice. However, the Court denies Defendants' Motion to Dismiss as to Plaintiffs claims for defamation, false light invasion of privacy, and intentional infliction of emotional distress.

I. Background

Plaintiff is a doctor who has provided expert testimony in criminal prosecutions in Mississippi. The Innocence Project is a national public policy organization whose goal is to exonerate people who have been wrongfully convicted of crimes. Defendant Neufeld is the Co-Director of The Innocence Project, and Defendant Potkin is a staff attorney for The Innocence Project.

On April 8, 2008, Defendants sent a letter to the Mississippi State Board of Medical Licensure, urging the Board to revoke Plaintiff's medical license. Defendants argued that Plaintiff, "by providing false and misleading autopsy reports and testimony in criminal prosecutions which carry a death sentence, has played a critical role in improperly sending an unknown number of people to death row or prison for life." Defendants further stated that Plaintiff had falsely testified under oath; misrepresented his qualifications; knowingly advanced false and misleading medical theories in criminal prosecutions; and otherwise engaged in unprofessional, dishonorable, and unethical conduct likely to harm the public. The Letter was accompanied by approximately 750 pages of documents in support of Defendants' claims.

In addition to the letter, Defendants issued press releases through their website on February 8, 2008; February 15, 2008; March 5, 2008; and August 5, 2008. The press releases of February 8 and 15, 2008, while containing representations similar to those found in the letter, did not, as a whole, specifically target Plaintiff. Rather, each contained a few paragraphs discussing Plaintiffs purported misconduct. The press releases of March 5, 2008, and August 5, 2008, more specifically targeted Plaintiff. Each contained representations similar to those of the letter. All four press releases were significantly less detailed than the letter.

Plaintiff initiated this action on April 3, 2009. Defendants promptly responded with a Motion to Dismiss [3] on June 22, 2009. However, the Court denied the motion without prejudice on December 8, 2009, allowing Plaintiff the opportunity to seek leave to amend his Complaint. Plaintiff filed his First Amended Complaint [35] on February 5, 2010. Defendants filed another Motion to Dismiss on March 17, 2010, and that motion is ripe for review.

II. Standard of Review

Defendants seek the dismissal of Plaintiff's First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants attached exhibits to their Motion to Dismiss and arguethat the Court may consider them without converting their Rule 12(b)(6) motion to a Rule 56 motion. Plaintiff did not provide a response to that aspect of Defendants' present motion. However, Plaintiff objected to the Court's consideration of the exhibits in his Response [13] to Defendants' first Motion to Dismiss [3]. "It is well known that when 'matters outside the pleading' are presented with a motion to dismiss under Rule 12(b)(6), a district court has complete discretion to either accept or exclude the evidence." Gen. Retail Servs., Inc. v. Wireless Toyz Franchise, LLC, 255 F. App'x 775, 783 (5th Cir. 2007) (citing Isquith v. Middle S. Utils., Inc., 847 F.2d 186, 193 (5th Cir. 1988); Fed. R. Civ. P. 12(b)). If the Court considers the matters outside the pleadings, "the motion must be treated as one for summary judgment under Rule 56, " and "[a]ll parties must be given a reasonable opportunity to present all material that is pertinent to the motion." Fed. R. Civ. P. 12(d).

However, "[d]ocuments that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to [his] claim." Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004); see also Sullivan v. Leor Energy LLC, 600 F.3d 542, 546 (5th Cir. 2010); In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007); Johnston v. One Am. Prods., Inc., 2007 WL 2433927, at *3 (N.D. Miss. Aug. 22, 2007) (where a movie formed the basis of plaintiff's defamation claim and was referred to in the complaint, a DVD copy of it attached to the motion to dismiss was not a matter outside the pleadings). Further, the Court may "permissibly refer to matters of public record" when deciding a 12(b)(6) motion to dismiss. Cinel v. Connick, 15 F.3d 1338, 1343 n. 6 (5th Cir. 1994); see also Hall v. Hodgkins, 305 F. App'x 224, 227-28 (5th Cir. 2008); Lovelace v. Software Spectrum, 78 F.3d 1015, 1017-18 (5th Cir. 1996).

When a defendant attaches evidence to a 12(b)(6) motion that was referenced in the Complaint and is central to the plaintiff's claims, "the defendant merely assists the plaintiff in establishing the basis of the suit, and the court in making the elementary determination of whether a claim has been stated." Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 499 (5th Cir. 2000). Such evidence may possess greater utility in defamation cases, where the Court must decide whether a complaint provides "allegations of sufficient particularity so as to give the defendant or defendants notice of the nature of the complained-of statements." Chalk v. Bertholf, 980 So. 2d 290, 297 (Miss. Ct. App. 2007). Furthermore, "the trial court in a defamation case must make the threshold determination of whether the language in question is actionable." Mitchell v. Random House, Inc., 703 F. Supp. 1250, 1256 (S.D. Miss. 1988), aff'd 865 F.2d 664 (5th Cir. 1989). "In determining whether a publication is [defamatory], it must be considered as a whole...." Blake v. Gannett Co., 529 So. 2d 595, 605 (Miss. 1988) (quoting Whitten v. Commercial Dispatch Pub. Co., Inc., 487 So. 2d 843, 845 (Miss. 1986)). For these reasons, this Court and the Mississippi Supreme Court have previously required a plaintiff to plead the words-paraphrased or verbatim-which constituted the defamation. See Lenoir v. Tannehill, 660 F. Supp. 42, 45 (S.D. Miss. 1986) (Plaintiffs must "plead the 'words or matter' constituting the alleged defamation."); Valley Dry Goods Co. v. Burford, 75 So. 252, 254 (Miss. 1917) (it is sufficient for plaintiff to allege the "words or synonymous words" which constitute defamation); Chalk, 980 So. 2d at 298 (where complaint failed to specify the statements-paraphrased or verbatim-which constituted defamation, dismissal was proper).

In his First Amended Complaint, Plaintiff specifically referenced the letter sent to the State Board of Medical Licensure and the press releases published by Defendants. Plaintiff attached copies of the letter and press releases to his First Amended Complaint. Plaintiff does not disputethat Defendants included extensive documentation with the letter to the State Board of Medical Licensure. Likewise, Plaintiff does not dispute that the exhibits Defendants attached to their Motion to Dismiss consist solely of the press releases, the letter, and the eighteen appendices which accompanied the letter. As all of the documents attached to Defendants' Motion to Dismiss are referenced in Plaintiff's First Amended Complaint and are central to his claims, they are part of the pleadings. Therefore, the Court may consider them without converting Defendant's Rule 12(b)(6) motion to a Rule 56 motion. See Sullivan, 600 F.3d at 546; In re Katrina Canal Breaches Litigation, 495 F.3d at 205; Causey, 394 F.3d at 288; Johnston, 2007 WL 2433927 at *3.

"Motions to dismiss under Rule 12(b)(6) 'are viewed with disfavor and are rarely granted.'" Lormand v. US Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009) (quoting Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 570 (5th Cir. 2005)). "To survive a Rule 12(b)(6) motion to dismiss, [a plaintiff s complaint] need only include 'a short and plain statement of the claim showing that the pleader is entitled to relief.'" Hershey v. Energy Transfer Partners., L.P., 610 F.3d 239, 245 (5th Cir. 2010) (quoting Fed. R. Civ. P. 8(a)(2)). However, the "'complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Great Lakes Dredge & Dock Co. LLC v. La. State, 624 F.3d 201, 210 (5th Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009)).

"To be plausible, the complaint's '[f]actual allegations must be enough to raise a right to relief above the speculative level.'" Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)) (alteration original). "The complaint need not contain 'detailed factual allegations, ' but must state 'more than mere labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.'" PSKS, Inc. v. Leegin Creative Leather Prods., Inc., 615 F.3d 412, 417 (quoting Twombly, 550 U.S. at 555, 127 S. Ct. 1955). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Iqbal, 129 S. Ct. at 1949). Phrased differently: "A claim has facial plausibility when the pleaded...

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