Hudik v. Fox News Network, LLC

• Decision Date: 07 January 2021
• Docket Number: NO. 3:19-cv-00127,3:19-cv-00127
• Citation: 512 F.Supp.3d 816
• Parties: Greg HUDIK, Plaintiff, v. FOX NEWS NETWORK, LLC and Sasha Savitsky, Defendants.
• Court: U.S. District Court — Middle District of Tennessee

512 F.Supp.3d 816

Greg HUDIK, Plaintiff,

v.FOX NEWS NETWORK, LLC and Sasha Savitsky, Defendants.

NO. 3:19-cv-00127

United States District Court, M.D. Tennessee, Nashville Division.

Filed January 7, 2021

Bryant B. Kroll, W. Gary Blackburn, The Blackburn Firm, PLLC, Nashville, TN, for Plaintiff.

Robb S. Harvey, Todd R. Hambidge, Waller, Lansden, Dortch & Davis, LLP, Nashville, TN, for Defendants.

MEMORANDUM OPINION

ELI RICHARDSON, UNITED STATES DISTRICT JUDGE

Pending before the Court is Defendants’ Motion to Dismiss (Doc. No. 47). Plaintiff filed a response (Doc. No. 53, "Response"), and Defendants replied (Doc. No. 55). For the following reasons, Defendants’ Motion to Dismiss will be granted.

BACKGROUND¹

Plaintiff Greg Hudik is a singer, songwriter, musician, and owner of Platinum Records Nashville LLC ("PRN"). (Doc. No. 42 at ¶ 1). As a musician, Plaintiff performed at the first MTV Spring Break concert in 1986 which had 400,000 people in attendance and a further 80 million viewers watching on television. (Id. at ¶ 7). Since 2016, Plaintiff has released seven singles nationally to radio, including his song "Music's a Religion" which went to the #2 position on the country-gospel charts in 2018. (Id. at ¶ 8).

Daryle Singletary was a country-music artist known for his singles "I Let Her Lie" and "Amen Kind of Love," both of which peaked at the #2 position on the Billboard country charts in the mid-1990s. (Id. at ¶ 11). In an effort to get Mr. Singletary back on the Billboard charts, Plaintiff and Mr. Singletary contracted to record and release the song "We're Not Going to Hell (For Having a Hell of a Time)" in 2016. (Id. at ¶ 12). Some time later, Plaintiff hired Mr. Singletary to sing a song entitled "She's Been Cheatin’ On Us" ("The Song"), which Plaintiff was mixing and mastering. (Id. at ¶ 14). Mr. Singletary discussed his financial struggles with the Plaintiff during these sessions. (Id. at ¶ 13). Plaintiff owned all rights to The Song. (Id. at ¶ 20).

Mr. Singletary suddenly and unexpectedly passed away on February 12, 2018 at the age of 46. (Id. at ¶ 16). The next day, Plaintiff sent an email blast to PlayMPE.com, an online music promotion and delivery service that supplies songs to radio stations; the blast stated that PRN wanted to release a new, unheard song (The Song) sung by Mr. Singletary with a fund to be created that would benefit the Singletary family from the proceeds of 100 percent of all digital downloads of The Song. (Id. at ¶ 21). Plaintiff then listed The Song on iTunes so that it could be downloaded. (Id. ). The photographs used to promote The Song were licensed to Plaintiff to promote "We're Not Going To Hell (For Having A Hell Of A Time)" rather than The Song. (Id. at ¶ 24).

Later that day, Wayne Halper, attorney for Holly Singletary (wife of Mr. Singletary) and Chuck Rhodes (Mr. Singletary's business partner), instructed Plaintiff to take down all images used to promote The Song as well as the recording. (Id. , Doc. No. 48-2). He further instructed Plaintiff not to set up an unauthorized fund for the Singletarys. (Doc. No. 48-2). Plaintiff immediately agreed to do so. (Doc. No. 42 at ¶ 25). Plaintiff then spoke with Donna Lee, whom he believed was Mr. Singletary's Manager and Booking Agent. (Id. at ¶ 26). Ms. Lee gave Plaintiff permission to use Mr. Singletary's images from "We're Not Going To Hell (For Having A Hell Of A Time)" and promised that she would speak to Holly Singletary about whether Holly wanted the charity. (Id. at ¶ 26).

On February 14, 2018, Plaintiff sent another email blast to PlayMPE.com under the title, "100% of ALL downloads go to the Holly Singletary Fund Raiser." (Id. at ¶ 27). In this blast, he instructed radio stations to not download or play The Song until the fund was set up. (Id. ).

That same day, Rhodes posted his dissatisfaction with the situation to his personal Facebook page. The post reads in full:

Just wanted to throw a little clarity on a situation that has been troubling me since Monday concerning the release of new music by my business partner and friend of 21 yrs, Daryle Singletary. "It has come to our attention that Greg Hudik at Platinum Records Nashville has been releasing music sung by Daryle Singletary. I want to make it crystal clear that this music being released has not been approved or sanctioned by Holly Singletary, The Singletary Family, Daryle's corporation TMF x 4, Donna Lee and Buddy Lee Attractions, Daryle's booking agency or his attorney Wayne Halper. The recordings were "works for hire" where Daryle was paid as a demo singer. I have worked with Daryle for 21 years to uphold the musical integrity of his recordings, his song choices and his record production along with Daryle's co-producer Greg Cole. These songs were never meant to be released as master recordings and do not reflect the Gold standard that Daryle held himself to and anybody in our immediate team that worked with him. There was also a mention by Mr. Hudik of a "fund" established with proceeds from downloads going to Holly Singletary and Daryle's family. At this time, no such fund exists, and when established, will be sanctioned by the Singletary family and overseen by Donna Lee at Buddy Lee Attractions. A cease and desist letter has been sent to Mr. Hudik demanding the songs be taken down immediately.

(Id. at ¶ 28, Doc. 42-1). On February 16, 2018, Defendant Sasha Savitsky, an entertainment editor at co-Defendant Fox News Network, reached out to Plaintiff for a comment "regarding Chuck Rhodes’ cease and desist." (Doc. No. 42 at ¶ 31). Plaintiff spoke with Defendant Savitsky over the phone that morning and explained his side of the story. (Id. at ¶¶ 32-34). Defendants never spoke with Rhodes but rather only read his Facebook post. (Id. at ¶ 39).

That same day, Defendants posted to FoxNews.com an article entitled, "Daryle Singletary's new single is a scam, not benefiting his widow and kids, business partner says" ("The Article") which is the subject of this lawsuit. (Id. at ¶ 35). The Article reads in full (omitting graphics and corresponding captions):

Daryle Singletary's record label announced shortly after his death that the company would be releasing an unpublished song from the late singer to benefit his widow and four children — but Singletary's business partner is fighting back.

Singletary died suddenly at age 46 on Monday. The cause of death is still unknown but a source told Fox News the family suspects he died of a blood clot.

On Wednesday, Platinum Records Nashville released "She's Been Cheatin' on Us," saying the company was setting up a fund for the Singletary family and would donate 100 percent of the proceeds to the fund.

However, Singletary's business partner Chuck Rhodes told Fox News that not only does no such fund exist, but the single released by Platinum Records Nashville is not a song of the late country singer.

"I want to make it crystal clear that this music being released has not been approved or sanctioned by Holly Singletary, The Singletary Family," Rhodes told Fox News in a statement.

Rhodes said the recording was simply "work for hire where Daryle was paid as a demo singer."

Rhodes, who has worked with Singletary for 21 years, told Fox News the song was "never meant to be released" and does not reflect "the Gold standard that Daryle held himself to."

However, Platinum Records Nashville President Greg Hudik told Fox News the song was part of the final album he recorded with Singletary and was not a demo. "It's the last thing that Daryle ever recorded, and I wanted the world to hear it. I wanted the family to get the benefit," Hudik told Fox News.

Hudik said his own father died when he was in fifth grade, leaving his mom to "feed six kids." When he heard of Singletary's passing he wanted to help his widow and children anyway he could.

"I wanted to do something for Daryle's family because the last time me and Daryle were in the studio, he told me about his financial struggles and how he was playing weekend to weekend to feed his family," Hudik said.

However, Rhodes said the Singletary family has not been made aware of any fund for the family. He has sent a cease and desist letter to Platinum Records Nashville to remove the song immediately.

Hudik said he is waiting until after Singletary's funeral to set up the fund but told Fox News he will remove the song if "that's what Holly [Singletary] wants."

Singletary was best known for his hit songs "Too Much Fun," "I Let Her Lie" and "Amen Kind of Love."

Plaintiff thereafter reached out multiple times to Defendant Savitsky in an attempt to have her either change The Article's wording or to further cover his side of the story. (Id. at ¶¶ 46-50). On February 16, 2018, Defendant Savitsky replied that Fox News had included Plaintiff's side of the story with quotes and, three days later, notified Plaintiff of a change in headline and that Defendants were not planning future coverage of the story. (Id. at ¶¶ 48, 52). Even with the change in headline, which simply removed the phrase "is a scam," the URL link to the news story kept the original headline with the word "scam" still in place. (Id. at ¶ 53).²

On February 8, 2018, Plaintiff filed his Complaint in this Court, invoking this Court's diversity jurisdiction and asserting three claims against both Defendants³ :a defamation claim, a claim of false light invasion of privacy, and a claim of defamation by implication or innuendo. (Doc. No. 1). On October 15, 2019, Plaintiff filed a First Amended Complaint, which asserted the same three claims. (Doc. No. 42).

LEGAL STANDARD

For purposes of a motion to dismiss brought pursuant to Rule 12(b)(6), the Court must view all the factual allegations in the complaint as true. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). To survive a motion to dismiss brought pursuant to Rule 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its...