Phillips v. World Publ'g Co.

• Citation: 822 F.Supp.2d 1114,40 Media L. Rep. 1048
• Decision Date: 14 October 2011
• Docket Number: Case No. C11–558RSM.
• Parties: Chris PHILLIPS, Plaintiff, v. WORLD PUBLISHING COMPANY, d/b/a the Tulsa World, Defendant.
• Court: United States District Courts. 9th Circuit. United States District Court (Western District of Washington)

40 Media L. Rep. 1048

822 F.Supp.2d 1114

Chris PHILLIPS, Plaintiff,

v.WORLD PUBLISHING COMPANY, d/b/a the Tulsa World, Defendant.

Case No. C11–558RSM.

United States District Court, W.D. Washington,at Seattle.

Oct. 14, 2011.

Christopher B. Phillips, Parkedge CR, Canada, pro se.

Bruce E. H. Johnson, Sarah Kathleen Duran, Davis Wright Tremaine, Seattle, WA, Schaad Titus, Titus Hillis Reynolds Love Dickman & McCalmon, Tulsa, OK, for Defendant.

ORDER ON MOTION TO DISMISS

RICARDO S. MARTINEZ, District Judge.

This matter is before the Court for consideration of a motion to dismiss and motion pursuant to RCW 4.24.525 to strike claims, filed by defendant World Publishing Company, Inc., doing business as the Tulsa World (“Tulsa World”). Dkt. # 21. For the reasons set forth below, the motion to dismiss shall be granted, and the motion to strike shall be denied as moot.

FACTUAL BACKGROUND

Plaintiff Chris Phillips, appearing pro se, filed this complaint for defamation and other torts pursuant to the diversity jurisdiction of this Court, asserting that he is a resident of Nova Scotia, Canada, or Massachusetts, that defendant is an Oklahoma corporation, and that the amount in controversy exceeds $75,000. Amended Complaint, Dkt. # 6, ¶¶ 2, 4. The Court has jurisdiction of this matter pursuant to 28 U.S.C. § 1332(a)(1) or (2). This is one of nine such complaints filed by plaintiff regarding events that occurred in March and April 2008, when plaintiff resided in Washington State.¹

The complaint alleges that plaintiff, who has both medical (M.D.) and legal (J.D.) degrees, was “a respected LASIK surgeon and ophthalmologist” who practiced medicine in Renton, Washington. Amended Complaint, ¶ 9. He was the owner of, and employed by, Seattle Eye Surgeons, doing business as Lomas LASIK and Eye Care Center. Id., ¶ 10. According to the complaint, on February 29, 2008, plaintiff “temporarily closed Lomas LASIK and Eye Care Center to remodel and restructure the business,” and laid off several employees. Id., ¶¶ 18, 19. Shortly after the closure, defendant Tulsa World “negligently began publishing numerous false statements” regarding plaintiff's decision to temporarily close the practice. Id., ¶ 20. These statements, according to plaintiff, included allegations that plaintiff had disappeared, vanished, was missing, and “unexpectedly left town.” Id., ¶¶ 25–28. Plaintiff alleges that he had previously informed this defendant that he was in the hospital. ² Id., ¶ 21. He subsequently informed defendant again of his hospitalization, as did a relative of his. ¶¶ 29–31. Nevertheless, according to plaintiff, this defendant “knowingly continued publishing the above false allegations.” Id., ¶ 32. As a result, plaintiff's reputation was damaged, his business was destroyed, and he had to declare bankruptcy, filing for personal bankruptcy on July 2, 2008. Id., ¶¶ 61–62.

On these and other factual allegations, plaintiff asserts various tort claims against the Tulsa World. The causes of action asserted are intentional and negligent infliction of emotional distress (Counts I and II), defamation and defamation per se (Counts III and IV), intentional interference with contractual relations (Count V), interference with a prospective advantage (Count VI), publication in a false light (Count VII) and civil harassment (Count VIII). Defendant has moved pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss the complaint and all counts therein for failure to state a claim. Defendant has also moved pursuant to RCW 4.24.525, Washington's “anti-SLAPP” law ³, to strike all claims and to recover the statutory penalty of $10,000. Dkt. # 11. Plaintiff has timely responded to oppose the motion. Dkt. # 26.

DISCUSSION

I. Rule 12(b)(6) Motion to DismissA. Legal Standard

Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 (9th Cir.1990). To sufficiently state a claim and survive a motion to dismiss, the complaint “does not need detailed factual allegations” but the “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Mere “labels and conclusions” or the “formulaic recitation of the elements of a cause of action will not do.” Id. 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, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). Apart from factual sufficiency, a complaint is also subject to dismissal where it lacks a cognizable legal theory, or where the allegations on their face “show that relief is barred” for some legal reason. Balistreri, 901 F.2d at 699; Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007).

In determining whether to grant a motion to dismiss, the Court must accept as true all “well-pleaded factual allegations” in the complaint. Iqbal, 129 S.Ct. at 1950. The Court is not, however, required to accept as true “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001). Nor is the Court required to accept “conclusory legal allegations cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 (9th Cir.1994).

In general, the Court may not consider any material outside the pleadings in ruling on a Rule 12(b)(6) motion. However, material which is properly submitted as part of the complaint may be considered. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n. 19 (9th Cir.1990) (citations omitted). Similarly, “documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading,” may be considered in ruling on a Rule 12(b)(6) motion. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.1994). Also subject to consideration under Fed.R.Evid. 201 are matters of public record, of which the Court may take judicial notice. Mack v. South Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir.1986).

B. Defamation Claims

Turning to the allegations in the complaint, and defendant's motion to dismiss them, the Court finds that plaintiff's defamation and “defamation per se” claims fail to state a claim. The elements of a cause of action for defamation in Washington are (1) a false statement; (2) lack of privilege; (3) fault; and (4) damages. Herron v. KING Broadcasting Co., 112 Wash.2d 762, 768, 776 P.2d 98 (1989). To establish the falsity element, the plaintiff must show the challenged statement was “provably false.” Schmalenberg v. Tacoma News, Inc., 87 Wash.App. 579, 590–91, 943 P.2d 350 (1997). “Expressions of opinion are protected by the First Amendment” and are “not actionable.” Robel v. Roundup Corp., 148 Wash.2d 35, 55, 59 P.3d 611 (2002) (quoting Camer v. Seattle Post–Intelligencer, 45 Wash.App. 29, 39, 723 P.2d 1195 (1986)).

The defamatory statements alleged by plaintiff in the Amended Complaint are that he “disappeared,” “vanished,” “was missing,” “unexpectedly left town,” “refused to provide any comment,” was “unreachable,” and that the closure of the medical practice “was a mystery.” Amended Complaint, Dkt. # 7, ¶¶ 25–28, 34–36. Nowhere in the complaint has plaintiff alleged when or where such statements were made, or what statements were actually made by defendant Tulsa World. His Amended Complaint is almost an exact copy of complaints he filed against KIRO–TV, the Seattle Times, and other news sources, and as to the alleged statements, it is identical. See, Phillips v. KIRO–TV, C11–379RSM, Dkt. # 4, ¶¶ 25–28, 36–38; Phillips v. Seattle Times, C11–661RMS, Dkt. # 4, ¶¶ 25–28, 36–38; Phillips v. Newspaper Holdings, Inc., d/b/a The Edmond Sun, C11–559RSM, Dkt. # 7, ¶¶ 25–28, 34–36. Nowhere does plaintiff separately identify the statements allegedly made by the Tulsa World from the statements allegedly made by KIRO–TV, the Seattle Times, or other media outlets. His defamation claim against the Tulsa World fails on this deficiency alone, as such scattershot and unsubstantiated allegations cannot withstand a motion to dismiss.

The Tulsa World has provided a declaration by general counsel, attaching copies of two articles about plaintiff that appeared on the website for the Edmond Sun, an Oklahoma newspaper, on April 2, 2008, and July 16, 2008. Declaration of Susan Cashon, Dkt. # 22. It appears that the stories, which came from the Associated Press, were picked up by the Tulsa World in Tulsa, Oklahoma, because of plaintiff's connection with former Olympic gymnast (and Oklahoma native) Shannon Miller. The two were married in a “lavish ceremony” in Oklahoma City in 1999, and later divorced. Id., Exhibit A.

The only statement among the ones that plaintiff lists in his complaint that actually appears in the article is in the headline of the first article, where it states “Shannon Miller's ex-husband vanishes.” Id. The first sentence of the article then explained that Dr. Phillips was “under investigation after abruptly closing his suburban business and leaving for parts unknown.” Id., Exhibit A. These are not actionable or false statements; plaintiff cannot dispute that he did abruptly leave town. Plaintiff has made this fact a matter of record by filing a copy of medical records indicating dates when he was hospitalized for diagnosis and treatment (March 3 to March 7, 2008 and March 22 to April 18, 2008). Declaration of Chris Phillips, Dkt. # 43, Exhibit A. Plaintiff's theory appears to be that the statement that he had “vanished” was false because he informed defendant that he was in the hospital, so defendant knew where he was. This...