In re Tribune Media Co.

• Decision Date: 25 May 2016
• Docket Number: Case No. 08–13141KJC
• Citation: 552 B.R. 282
• Parties: In re: Tribune Media Company, et al., Reorganized Debtors
• Court: U.S. Bankruptcy Court — District of Delaware

552 B.R. 282

In re: Tribune Media Company, et al.¹ Reorganized Debtors

Case No. 08–13141KJC

United States Bankruptcy Court, D. Delaware.

Signed May 25, 2016

Matthew G. Martinez, Sidley Austin LLP, Chicago, IL, Norman L. Pernick, Patrick J. Reilley, J. Kate Stickles, Cole Schotz P.C., Wilmington, DE, for Reorganized Debtors.

OPINION SUSTAINING OBJECTION TO CLAIM OF ROBERT HENKE²

BY: KEVIN J. CAREY

, UNITED STATES BANKRUPTCY JUDGE

Before the Court is the Debtors' objection (D.I.3796) (the “Objection”) to proof of claim number 3697 (the “Claim”) filed by Robert Henke against Debtor The Baltimore Sun Company (the “Sun”). Mr. Henke's Claim, in the amount of $100 million, is based on a defamation lawsuit that he filed pro se against the Sun in 2008 arising out of a newspaper article published on October 7, 2007. In the Objection, the Debtors argue that (i) the underlying lawsuit was filed after the applicable statute of limitations, (ii) Mr. Henke has not provided evidence to support his claims of defamation and other causes of action, and (iii) Mr. Henke has not provided any support for calculating his damages at $100 million.

Mr. Henke filed a response to the Objection (D.I.3989) (the “First Response”), but then filed an amended proof of claim (the “Amended Claim”) (claim number 7106), which attached a Proposed Amended Complaint dated April 15, 2012 (the “Amended Complaint” or “AC”). The Debtors filed a supplemental objection (D.I.11792) (the “Supplemental Objection”), to which Mr. Henke responded (D.I.11931) (the “Second Response”), and the Debtors then filed a reply in support of their Supplemental Objection (D.I.11956) (the “Reply”).

On July 11, 2012, the Court held a hearing on the Objection (the “Hearing”), at which Mr. Henke appeared pro se. On August 10, 2012, Mr. Henke filed a third response to the Objection (D.I.12238) (the “Third Response”). Throughout the responses and the Hearing, Mr. Henke argued that the Sun's article was a continuation of two decades of misconduct by the Sun and others that targeted him, his wife, and their business, resulting in their financial ruin.

For the reasons set forth below, the Court will sustain the Debtors' Objection.

Facts

On October 7, 2007, the Sun published a two and one-half page article written by Gadi Dechter entitled “A Modern–Day Ahab: In Pursuit of Geologic Immortality, Inventor Robert Henke Has Sacrificed Everything: Comfort, Career, Family” (the “Article”). The Article recounts Mr. Henke's experiences in developing a new geotechnical soil testing technology that predicts how various soils will react in an earthquake (the “Technology”) and the effect of this unrelenting undertaking on his career and his family.

Mr. Henke initially approached the Sun in late 2006 requesting an investigation of his former employer, Johns Hopkins University (the “University”), and the Sun due to their alleged misconduct directed against Mr. Henke, his wife and their firm to interfere with his career and their progress on the Technology. In the Amended Complaint, he alleges that he approached the Sun because:

[F]acts and reason suggest The Sun had been complicit in the misconduct, possibly pivotally. Starting soon after the plaintiff left the University, The Sun, over roughly two decades (1990–2009), conspicuously published a large number of articles that suggest the possibility The Sun may have stalked him, the firm and his family; interfered with progress on the technology; and protected possible architects of the misconduct. For example, the stalking articles publicized, in separate articles, a large number of plaintiff's students in a particular course of his; close friends and associates of his sons; and contractors of the firm. Among other things, the articles gave him the unsettling impression that he, his family, and the firm were under surveillance. Facts and reason suggest the University inspired the articles; the University is close to The Sun ... and the initial articles coincided roughly with plaintiff leaving the University....³

In response to this request, Mr. Dechter proposed to write a long article about Mr. Henke's experiences. Mr. Henke “agreed to an article only because he believed a sincere article might well lead to the investigation he had long sought, because of representations The Sun made regarding the article, and because he believed The Sun would publish a sincere article.”⁴

Mr. Dechter began working on the Article in early January 2007. In February 2007, Mr. Henke provided Mr. Dechter with a list of personal and professional acquaintances and colleagues, which included both “supporters” and “detractors,” for interviewing.⁵ The resulting Article chronicled Mr. Henke's early life, his academic career as an engineering professor at the University, his dismissal from the University, his continued efforts to develop the Technology through his firm (consisting of his wife, who is also an engineer, and him) by seeking government grants (many of which were denied) and using personal funds, as well as the overall effect of his pursuit on his family. The Article painted Mr. Henke as a scientist with a singular purpose: to achieve “scientific glory” through acceptance by the scientific community of his soil probe.

Displeased with the Article's overall theme, its “material concealments,” “direct personal attacks,” and “falsifications,” Mr. Henke decided to sue the Sun and Mr. Dechter for defamation, fraud, invasion of privacy, and civil conspiracy. As he was unable to find an attorney willing to take his case, Mr. Henke brought suit as a pro se litigant. On October 3, 2008, he sent a two-page complaint (the “Complaint”) and a personal check for $105 via the U.S. Postal Service to the Circuit Court for Baltimore City, Maryland (the “Circuit Court”).⁶ Mr. Henke produced a signed receipt indicating that the Complaint was delivered to the Office of the Clerk for the Circuit Court (the “Clerk's Office”) on October 6, 2008, although the Complaint is stamped as received by the Clerk's Office on October 7, 2008.⁷ Mr. Henke also sent his Complaint to the Sun, but not to Mr. Dechter, who apparently was never served. The Sun received and signed for the Complaint on October 6, 2008.⁸

In the format of a letter to the Circuit Court, the Complaint's subject line states: “Defamation Complaint.”⁹ The first sentence reads: “Herein, I, Robert Henke, present a complaint I have against a newspaper, The Baltimore Sun (“The Sun”) and a Sun reporter, Mr. Gadi Dechter.” Under the heading “Complaint,” Mr. Henke presents his causes of action without enumerating or labeling them as claims:

The article appears to have been a material and well-crafted defamatory fabrication. Facts were created, facts were reshaped, and facts were omitted—on a large scale. For example, both the prominent theme of the article and compelling evidence for that theme were untrue. Evidence suggests that the untruths and misrepresentations were reckless and deliberate....

Much evidence suggests The Sun's lapses were intentional. For example, The Sun gained my family's cooperation through false pretenses; The Sun violated our privacy; The Sun carried out an insincere facts check; and The Sun misrepresented the origin of the article.

Additionally, The Sun appears to have been pressured by the University.¹⁰

The Complaint ends by stating that Mr. Henke was serving a copy of the Complaint upon the Sun, and provides the name of the Sun's President and CEO, as well as the newspaper's address.

On October 8, 2008, however, the Clerk's Office returned the Complaint to Mr, Henke with a form stating: “[t]he enclosed papers are being returned for the following reason(s) ... [y]ou must give us the name and addresses of the parties you are filing suit against so that the summones [sic] can be processed for service.”¹¹ The Clerk's Office also attached Mr. Henke's personal check to the returned Complaint, since it was an unacceptable form of payment.

On October 13, 2008, Mr. Henke sent the Circuit Court a letter with the names and addresses of the defendants and a money order, an acceptable form of payment.¹² He did not attach his Complaint, believing the Circuit Court had kept a copy of it.¹³ The Clerk's Office received and signed for Mr. Henke's letter on October 17, 2008.¹⁴ On December 18, 2008, Mr. Henke called the Clerk's Office to inquire about the status of his case. He was told there was no record of it.¹⁵ He also discovered that the money order had not been cashed. On December 30, 2008, Mr. Henke resubmitted his Complaint to the Circuit Court with proper payment.¹⁶ The Clerk's Office received the Complaint on January 7, 2009, and the Court Clerk docketed it on January 12, 2009, assigning it case number 24–C–09–000340. Due to the Debtors' voluntary chapter 11 petitions filed on December 8, 2008, however, the Circuit Court entered an Order dated August 22, 2009 staying Mr. Henke's Maryland court action against the Debtors pursuant to section 362(a) of the Bankruptcy Code

.¹⁷

Mr. Henke's First Response, filed on April 9, 2010, included a three-page appendix entitled “Draft Amendment to Narrative of Complaint” (“Draft Amendment”). On April 19, 2012, Mr. Henke filed his Amended Claim, attaching his Amended Complaint. The Amended Complaint significantly elaborated the claims contained in his Complaint and Draft Amendment.

Standard

The Debtors object to Mr. Henke's claim under Bankruptcy Code § 502(b)(1)

, which provides that a Court will disallow a claim to the extent that the claim is unenforceable under applicable law.¹⁸ Section 502(b)(1) recognizes the settled principal that “[c]reditors' entitlements in bankruptcy arise in the first instance from the underlying substantive law creating the debtor's obligation, subject to any qualifying or contrary provisions of the Bankruptcy Code.”¹⁹ “A claim against the bankruptcy estate, therefore, ‘will not be allowed in a bankruptcy proceeding if the same claim would not be enforceable against the...