Miller v. Sawant

• Decision Date: 29 December 2020
• Docket Number: CASE NO. C18-506 MJP
• Court: U.S. District Court — Western District of Washington
• Parties: SCOTT MILLER, and MICHAEL SPAULDING, Plaintiffs, v. KSHAMA SAWANT, Defendant.

SCOTT MILLER, and MICHAEL SPAULDING, Plaintiffs, v. KSHAMA SAWANT, Defendant.

CASE NO. C18-506 MJP

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

December 29, 2020

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

This matter comes before the Court on Defendant Kshama Sawant's Motion to Dismiss Plaintiffs' Third Amended Complaint. (Dkt. No. 57.) Having reviewed the Motion, Plaintiffs' Opposition (Dkt. No. 59), Defendant's Reply (Dkt. No. 65), and all supporting papers, the Court GRANTS the Motion and DISMISSES all claims WITH PREJUDICE.

BACKGROUND

The Parties are well acquainted with the allegations Officers Scott Miller and Michael Spaulding make against Councilmember Kshama Sawant—this is now Plaintiffs' fourth attempt to plead actionable claims. The Ninth Circuit affirmed this Court's determination that the Second Amended Complaint (SAC) lacked sufficient allegations that the statements Councilmember Sawant made were "of and concerning" Plaintiffs. Miller v. Sawant, D.C. No. 19-35228, Memorandum Disposition at 4 (9th Cir. Apr. 8, 2020) (Dkt. No. 46) ("Memorandum") ("Here, the operative complaint does not plead any facts to show that Sawant's remarks can reasonably be understood to refer to Plaintiffs.") But the Ninth Circuit reversed dismissal with prejudice, giving Plaintiffs leave "to plead additional facts to show that Sawant's remarks can reasonably be understood as referring to them, such as who heard the remarks, and whether anyone identified Plaintiffs as the subject of them. . . ." Id. at 5. Plaintiffs were also permitted to "plead extrinsic facts to show that Sawant's statements were 'of and concerning' them." Id. at 5 n.3 (citing Purvis v. Bremer's, Inc., 54 Wn.2d 743 (1957)).

The Third Amended Complaint (TAC) remains virtually identical to the SAC. Plaintiffs have added five new paragraphs containing: (1) the two statements at issue (TAC ¶¶ 37, 47); (2) allegations that the general public could identify Plaintiffs from the statements (TAC ¶¶ 46, 48); and (3) allegations that family and friends were able to identify Plaintiffs from the remarks (TAC ¶¶ 45, 48). The present Motion requires an analysis of Councilmember Sawant's two statements. She made the first shortly after the Police shot Che Taylor during an encounter:

This is dramatic racial injustice, in this city and everywhere in this nation. The brutal murder of Che Taylor, just a blatant murder at the hands of the police, show how urgently we need to keep building our movement for basic human rights for black people and brown people. I want to let you know that I stand here both as an elected official, as a brown person, as an immigrant woman of color, and as someone who has been in solidarity with the Black Lives Matter movement, and our movement for racial, economic and social justice....

And I am here as an elected official because I am completely committed, unambiguously committed, to holding the Seattle Police Department accountable for their reprehensible actions, individual actions. We need justice on the individual actions and we need to turn the tide on the systematic police brutality and racial profiling.

(TAC ¶ 37 (emphasis in TAC).) Over a year later, Councilmember Sawant made the second statement at issue:

I join the NAACP in demanding such a transparent public hearing. When Che Taylor was murdered by the police, the community and I demanded such a hearing from the Mayor and from Council member Gonzalez whose committee oversees the SPD, but neither the Mayor nor Council member Gonzalez responded. In . . . in light of the horrific killing of Charleena now I again urge...I publicly urge the City Council to hold such a hearing. I have also earlier today sent a number of important questions to the SPD.

. . . We demand that the City of Seattle appoint an independent committee to review this case . . . with . . . with full public accountability. We cannot rely on the existing process to determine why Charleena was killed because that process has failed Che Taylor. . . that process has failed every person who was killed at the hands of the Police. Sisters and brothers, I will add one more thing for our movement that is standing with Charleena to think about, a deeply unequal society such as ours also implies that the lives of poor and low-income people, black and brown people, homeless people, those who have mental health issues and challenges . . . the system treats our lives as expendable.

(TAC ¶ 47 (emphasis in TAC).)

The Court has considered both statements in dismissing the SAC. See Order Granting Defendant's Motion to Dismiss the SAC at 4 (Dkt. No. 36) ("Order"). So, too, did the Ninth Circuit. See Memorandum at 4 n.2. But the Court has not considered the specific allegations in Paragraphs 45, 46, and 48, which Plaintiffs made to show that Councilmember Sawant's statements could "reasonably be understood as referring to them." See Memorandum at 5.

ANALYSIS

A. Legal Standard

The Court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "A complaint may fail to show a right of relief either by lacking a cognizable legal theory or by lacking sufficient facts alleged under a cognizable legal theory." Woods v. U.S. Bank N.A., 831 F.3d 1159, 1162 (9th Cir. 2016). In ruling on a Rule 12(b)(6) motion, the Court must accept all material allegations as true and construe the complaint in the light most favorable to the non-movant. Wyler Summit P'Ship v. Turner Broad. Sys., Inc.,135 F.3d 658, 661 (9th Cir. 1998). The complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

Despite this otherwise liberal pleading standard, the Ninth Circuit has held that courts should consider First Amendment concerns even at the pleading stage. "[W]here a plaintiff seeks damages . . . for conduct which is prima facie protected by the First Amendment, the danger that the mere pendency of the action will chill the exercise of First Amendment rights requires more specific allegations than would otherwise be required." Flowers v. Carville, 310 F.3d 1118, 1130 (9th Cir. 2002) (quoting Franchise Realty Interstate Corp. v. S.F. Local Joint Exec. Bd. of Culinary Workers, 542 F.2d 1076, 1082-83 (9th Cir. 1976)). "Defamation claims, in particular, must be advanced with sufficient specificity," Harris v. City of Seattle, 315 F. Supp. 2d 1112, 1123 (W.D. Wash. 2004), including "the precise statements alleged to be false and defamatory, who made them and when," Flowers, 310 F.3d at 1130.

B. Defamation Elements and Standard

The elements of a defamation claim are (1) a false statement; (2) lack of privilege; (3) fault; and (4) damages. Herron v. KING Broadcasting Co., 112 Wn.2d 762, 776 (1989). The First Amendment further requires that the challenged statement be made "of and concerning" the plaintiff. See New York Times Co. v. Sullivan, 376 U.S. 254, 288-92 (1964); Sims v. KIRO, Inc., 20 Wn. App. 229, 233 (1978).

Whether a statement satisfies the "of and concerning" requirement is a question of "constitutional dimension" which "should ordinarily be resolved at the pleading stage." Gilman v. Spitzer, 902 F. Supp. 2d 389, 394 (S.D.N.Y. 2012) (citations omitted). In determining whether the "of and concerning" requirement has been satisfied, "[i]t is not necessary that the plaintiff bementioned by name in order to recover damages." Camer v. Seattle Post-Intelligencer, 45 Wn. App. 29, 37 (1986). However, "[t]he defamatory character of the language used must be certain and apparent from the words themselves, and so must the identification of the plaintiff as the person defamed." Sims, 20 Wn. App. at 234 (citation omitted). "One cannot by implication identify himself as the target of an alleged libel if the allegedly false statement does not point to him." Id. (citation omitted). Where a defamatory statement concerns a group or class of persons, a member may sustain a claim for defamation "but only if (a) the group or class is so small that the matter can reasonably be understood to refer to the member, or (b) the circumstances of [the statement] reasonably give rise to the conclusion that there is particular reference to the member." Id. at 236 (citing Restatement (Second) of Torts § 564A (1977)); see also Barger v. Playboy Enterprises, Inc., 564 F. Supp. 1151, 1153 (N.D. Cal. 1983) ("If the group is small and its members easily ascertainable, plaintiffs may succeed. But where the group is large—in general any group numbering over twenty-five members—the courts . . . have consistently held that plaintiffs cannot show that the statements were 'of and concerning them.'") (citations omitted). In other words, whether proceeding under an individual or group theory, Plaintiffs must plead that the statements "specifically" identified or singled them out, or was understood as "referring to [them] in particular." Sims, 20 Wn. App. at 236.

As the Ninth Circuit's Memorandum notes, Plaintiffs may plead "extrinsic facts to show that Councilmember Sawant's statements were 'of and concerning' them." Memorandum at 5 n.3. "While the reasonable meaning of published words cannot be altered or extended by the pleading of innuendo, the pleader may be able to add meaning to words by a pleading of the circumstances surrounding the publication." Purvis, 54 Wn.2d at 751-52; see Memorandum at 5 n.3. The scope of extrinsic facts is not limitless—such evidence must contextualize "the sense inwhich [the statement] would ordinarily be understood by [the listening public]." Purvis, 54 Wn.2d at 751. For example, in Purvis the "extrinsic" evidence was simply additional text from the same advertisement that contained the language the plaintiff alleged was libelous. Id. at 754. Extrinsic facts are thus limited to "those essential to understand the context...