Klocke v. Watson
| Decision Date | 06 April 2022 |
| Docket Number | 4:17-CV-285-A |
| Citation | 597 F.Supp.3d 1019 |
| Parties | Wayne M. KLOCKE, Independent Administrator of the Estate of Thomas Klocke, Plaintiff, v. Nicholas Matthew WATSON, Defendant. |
| Court | U.S. District Court — Northern District of Texas |
Kenneth B. Chaiken, Robert L. Chaiken, Chaiken & Chaiken PC, Plano, TX, Jonathan T. Suder, Friedman Suder & Cooke PC, Fort Worth, TX, for Plaintiff Wayne M. Klocke.
Darren G. Gibson, Natalee Bryan Marion, Littler Mendelson PC, Austin, TX, Barbi McClennen Lorenz, Saba Harim Alvi, Victoria Nsikak, Littler Mendelson PC, Dallas, TX, for Defendant.
Came on for consideration the motion of defendant, Nicholas Matthew Watson, for summary judgment and the motion of plaintiff, Wayne M. Klocke, Independent Administrator of the Estate of Thomas Klocke, for partial summary judgment. The court, having considered the motions, the responses, the replies, the record, and applicable authorities, finds that plaintiff's motion should be denied and that defendant's motion should be granted.
This lawsuit has a lengthy procedural history. It arises out of events that occurred on May 19, 2016, during a class at the University of Texas at Arlington ("UTA") in which defendant and Thomas Klocke ("Thomas") were students. Plaintiff originally sued defendant and UTA. Doc.1 1. Shortly after the case was filed, the court granted defendant's motion to dismiss plaintiff's claims pursuant to the Texas Citizens Participation Act, Tex. Civ. Prac. & Rem. Code §§ 27.001 - .011 (West 2015), ("TCPA") and for plaintiff's failure to comply with the Texas Defamation Mitigation Act, Tex. Civ. Prac. & Rem. Code §§ 73.051 - .062 (West 2017), ("DMA"). Doc. 38. The court ordered that the dismissal of the claims against defendant be made final. Doc. 77. As a matter of first impression, the Fifth Circuit determined that the TCPA does not apply in federal court and reversed the court's dismissal of the claims against defendant and remanded for further proceedings. Klocke v. Watson, 936 F.3d 240 (5th Cir. 2019).
While an interlocutory appeal of the dismissal of plaintiff's claims against defendant was pending, the court granted UTA's motion for summary judgment. Doc. 160. That ruling was upheld on appeal. Klocke v. Univ. of Tex. at Arlington, 938 F.3d 204 (5th Cir. 2019) [hereinafter "the UTA opinion"]. Plaintiff's petition for writ of certiorari was denied. ––– U.S. ––––, 140 S. Ct. 1268, 206 L.Ed.2d 256 (2020).
After dismissing the claims against UTA, the court granted defendant's motion for summary judgment. Doc. 228. That ruling was initially affirmed, Klocke v. Watson, 861 F. App'x 524 (5th Cir. 2021), but later reversed on rehearing. No. 20-10103, 2021 WL 5871884 (5th Cir. Dec. 10, 2021).
The panel that most recently ruled says that this court cannot rely on the Fifth Circuit's prior rulings as law of the case. Klocke, 2021 WL 5871884, at *6 (). This court did not believe that it was making credibility determinations in reciting from the UTA opinion. As that panel stated: "it is uncontradicted that Moore considered the following in his decision." 938 F.3d at 211. The Fifth Circuit recited the six items this court quoted in its opinion granting defendant's first motion for summary judgment. 2020 WL 438114, at *4 (quoting 938 F.3d at 211 ). The "credibility determinations" for which the second panel faults the court were those made by Moore in conducting his investigation on behalf of UTA. That Moore determined that Thomas's version of the facts was not credible is not disputed.2 In any event, as defendant points out, the second opinion did not find that there was a genuine issue of material fact as to the falsity of defendant's statements or that the court's initial legal analysis of the evidentiary issues was wrong. Rather, it found that the court did not resolve certain evidentiary issues before granting summary judgment and that it erred in finding that plaintiff had waived an argument that defendant's allegations constituted defamation per se and was unable to present competent evidence of compensable damages. Doc. 251 at 7.
Plaintiff seeks partial summary judgment that defendant (a) falsely published fact statements3 that (1) damaged Thomas's reputation, i.e., his occupation as a student and any future occupation, (2) Thomas threatened or made threats against defendant, and (3) accused Thomas of sexual misconduct; (b) defamed Thomas as a matter of law; and (c) caused injury to Thomas as a matter of law. Doc. 239.
Defendant seeks judgment that plaintiff take nothing on the claims against him because (1) plaintiff cannot present competent summary judgment evidence that defendant's statements were false; (2) plaintiff cannot establish that defendant's publications constitute defamation per se; (3) plaintiff's claims are untimely; and (4) plaintiff's failure to comply with the DMA bars him from recovering exemplary damages. Doc. 245.
Rule 56(a) of the Federal Rules of Civil Procedure provides that the court shall grant summary judgment on a claim or defense if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) ; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The movant bears the initial burden of pointing out to the court that there is no genuine dispute as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant can discharge this burden by pointing out the absence of evidence supporting one or more essential elements of the nonmoving party's claim, "since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323, 106 S.Ct. 2548.
Once the movant has carried its burden under Rule 56(a), the nonmoving party must identify evidence in the record that creates a genuine dispute as to each of the challenged elements of its case. Id. at 324, 106 S.Ct. 2548 ; see also Fed. R. Civ. P. 56(c) (). If the evidence identified could not lead a rational trier of fact to find in favor of the nonmoving party as to each essential element of the nonmoving party's case, there is no genuine dispute for trial and summary judgment is appropriate. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 597, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In Mississippi Prot. & Advocacy Sys., Inc. v. Cotten, the Fifth Circuit explained:
Where the record, including affidavits, interrogatories, admissions, and depositions could not, as a whole, lead a rational trier of fact to find for the nonmoving party, there is no issue for trial.
929 F.2d 1054, 1058 (5th Cir. 1991).
The standard for granting a motion for summary judgment is the same as the standard for rendering judgment as a matter of law. Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. If the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Matsushita, 475 U.S. at 597, 106 S.Ct. 1348 ; see also Mississippi Prot. & Advocacy Sys., 929 F.2d at 1058.
The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505. Moreover, "[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).
Although the court must resolve all factual inferences in favor of the nonmovant, the nonmovant cannot manufacture a disputed material fact where none exists. Albertson v. T.J. Stevenson & Co., 749 F.2d 223, 228 (5th Cir. 1984). He cannot defeat a motion for summary judgment by relying on conclusory allegations unsupported by concrete and particular facts. Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 312 (5th Cir. 1995).
The record establishes the following undisputed facts:
On May 19, 2016, Thomas and defendant sat next to each other in a class conducted by Dr. Long ("Long") at UTA. Doc. 252 at 24-25. Defendant did not know Thomas.
Id. at 1, ¶ 3. Blake Lankford ("Lankford") sat on the other side of Thomas. Id. at 19, 24. An exchange occurred between defendant and Thomas by typing on their respective computer screens and by spoken words. Id. at 1-2, ¶ 4, 15-19; Doc. 242 at 12-14, 33. Lankford could tell that defendant and Thomas were tense but he did not know what was going on. Doc. 242 at 99. He did not hear or see any exchange between the two, except that he heard defendant tell Thomas he could leave.5 Id. at 95, 97-98, 100, 102-04. At some point, Thomas left and when he returned he took another seat on the far side of the room. Id. at 100. Lankford did not recall whether defendant was using his laptop or cell phone during class. Id. at 111. He did not recall being asked whether he had observed defendant laughing or causing a distraction or saying that he did not see or hear defendant laughing or causing a distraction.6 Id. at 112-13. And, he could not say whether defendant had engaged in distracting behavior. Id. at 119.
Immediately after the exchange, defendant posted on Facebook:
The guy sitting next to me just typed into his computer "ga;ys should die." Then told me I was a "fa**ot" and that I should "kill myself." I haven't felt this...
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