Pierce v. Warner Bros Entm't, Inc., CASE NO.: 5:16–CV–207 (LJA)

• Decision Date: 15 February 2017
• Docket Number: CASE NO.: 5:16–CV–207 (LJA)
• Parties: Titi PIERCE, Plaintiff, v. WARNER BROS ENTERTAINMENT, INC., Defendant.
• Court: U.S. District Court — Middle District of Georgia

237 F.Supp.3d 1375

Titi PIERCE, Plaintiff,

v.WARNER BROS ENTERTAINMENT, INC., Defendant.

CASE NO.: 5:16–CV–207 (LJA)

United States District Court, M.D. Georgia, Macon Division.

Signed February 15, 2017

Stacey Godfrey Evans, Atlanta, GA, for Plaintiff.

Thomas M. Clyde, Kilpatrick Townsend & Stockton LLP, Ava Conger, Atlanta, GA, for Defendant.

ORDER

LESLIE J. ABRAMS, JUDGE UNITED STATES DISTRICT COURT

Before the Court are Defendant's Motion to Dismiss for Failure to State a Claim (Doc. 6) and Plaintiff's Motion to Amend Complaint (Doc. 12). For the following reasons, Defendant's Motion to Dismiss (Doc. 12) is GRANTED and Plaintiff's Motion to Amend (Doc. 12) is DENIED.

BACKGROUND

Plaintiff Titi Pierce initiated this action on June 2, 2016. (Doc. 1). Plaintiff's Complaint alleges that Defendant committed the torts of false light invasion of privacy, misappropriation of likeness, defamation, and intentional infliction of emotional distress, in violation of Georgia state law. Id. Plaintiff's allegations arise from an episode of the Ellen DeGeneres Show, in which a segment called "What's Wrong with These These Signs? Signs " appeared. Id. at ¶ 1.¹ The segment aired on February 22, 2016, and again on April 15, 2016. Id.

DeGeneres introduces the segment by saying, "I've got some more mistakes I want to show you right now in our segment ‘What's Wrong with These Signs? Signs. ’ " (Doc. 7). First, a picture of a sign reading, "Breakfast is Served" over a display of wine bottles is shown. Id. Referring to the photo, DeGeneres says, "The most important meal of the day in there. I don't know what's wrong with that sign." Id. Next, a picture of a sign for a dentist office is shown. The sign is fluorescent, and it is obvious that some of the lights illuminating the letters are not working. The illuminated letters read, "ow! Dental," whereas the non-illuminated letters read, "Now! Dental." Id. DeGeneres pronounces the name in the sign as "ow! Dental," and suggests that the office is next door to "Ew Proctology." Id. Next, a picture of a sign reading "$exchange" is shown. DeGeneres pronounces the word in the sign as "sex change" and suggests that "you can come back from your vacation feeling like a new man." Id. Next, a picture of a sign reading "Nipple Convalescent Home" is shown. After reading the name aloud, DeGeneres asks "What boob named that place?". Id.

Finally, a picture of Plaintiff's real estate yard sign is shown. The sign displays Plaintiff's name and phone number, as well as the name of her company. Id. Another phone number under her company's name has been blurred out. Id. DeGeneres pronounces Plaintiff's name as "ti-te" rather than the pronunciation used by Plaintiff, "te-te." Id. DeGeneres then says, "Ah, ti-te Pierce. Sounds like she might have spent some time in that Nipple home, I don't know." Id. She then thanks the viewers for sending in the photos, and the segment ends as the show cuts to a commercial break. Id.

After the segment first aired on February 26, 2016, Plaintiff received many phone calls from unknown callers making fun of her name. (Doc. 1, ¶¶ 37–38). After she stopped answering the phone calls, she received several "harassing and ridiculing voice mail messages" and text messages Id. at ¶¶ 39, 45. Plaintiff's co-workers also fielded some of these phone calls following the segment, and eventually issued a statement on the company Facebook page to try and ward off callers. Id at ¶ 46. The segment was also posted on the Ellen DeGeneres Show's Facebook page, and Plaintiff describes the comments as "mostly vile and very hurtful to read." Id. at ¶¶ 51, 53.

Plaintiff contacted Defendant twice after the segment initially aired, informing Defendant of her preferred pronunciation of her name, and pointing out that Defendant did not blur out her telephone number despite blurring out the second phone number on her real estate sign. Id. at ¶¶ 56–57. On April 15, 2016, Defendant aired the segment again without changing Plaintiff's name pronunciation or blurring out her phone number. Id. at ¶ 62. After the second airing, Plaintiff received a fresh batch of harassing telephone calls and endured a "fresh assault" on social media. Id. at ¶ 63.

MOTION TO DISMISS

I. Legal Standard

Federal Rule of Civil Procedure 12(b)(6) allows a party to assert the defense of failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss under Rule 12(b)(6), the complaint must plead enough facts to state a claim for relief that is plausible—not just conceivable—on its face. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Restated, "the factual allegations in the complaint must possess enough heft to set forth a plausible entitlement to relief." Edwards v. Prime, Inc. , 602 F.3d 1276, 1291 (11th Cir. 2010) (internal citation and punctuation marks omitted).

On a motion to dismiss, the Court "construes the complaint in the light most favorable to the plaintiff and accepts all well-pled facts alleged [ ] in the complaint as true." Sinaltrainal v. Coca–Cola Co. , 578 F.3d 1252, 1260 (11th Cir. 2009), abrogated on other grounds by Mohamad v. Palestinian Auth. , 566 U.S. 449, 132 S.Ct. 1702, 182 L.Ed.2d 720 (2012). The "tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). While notice pleading is a liberal standard, "it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Id. at 678–79, 129 S.Ct. 1937. A "plaintiff's obligations to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (internal citations omitted). Moreover, when evaluating the sufficiency of a complaint, the Court must "make reasonable inferences in plaintiff's favor;" however, the Court is "not required to draw plaintiff's inference[s]." Sinaltrainal v. Coca–Cola Co. , 578 F.3d 1252, 1260 (11th Cir. 2009) (quoting Aldana v. Del Monte Fresh Produce, N.A., Inc. , 416 F.3d 1242, 1248 (11th Cir. 2005) ), abrogated on other grounds by Mohamad v. Palestinian Auth. , 566 U.S. 449, 132 S.Ct. 1702, 182 L.Ed.2d 720 (2012).

II. Discussion

a. Defamation

Plaintiff fails to state a claim for defamation. Under Georgia law, defamation requires: "(1) a false and defamatory statement concerning the plaintiff; (2) an unprivileged communication to a third party; (3) fault by the defendant at least amounting to negligence; and (4) special harm or the actionability of the statement irrespective of special harm." Bollea v. World Championship Wrestling, Inc. , 271 Ga.App. 555, 557, 610 S.E.2d 92 (2005). At issue in this case is whether DeGeneres made a false and defamatory statement about Plaintiff when she pronounced Plaintiff's name as "ti-te," instead of "te-te." Plaintiff's claims fail because, even when a statement is demonstrably false, the First Amendment "provides protection for statements that cannot reasonably be interpreted as stating actual facts about an individual." Milkovich v. Lorain Journal Co. , 497 U.S. 1, 20, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990) ; Jaillett v. Georgia Television Co. , 238 Ga.App. 885, 890, 520 S.E.2d 721 (1999) (noting that the first amendment protects statements of "rhetorical hyperbole"). "This provides assurance that public debate will not suffer for lack of ‘imaginative expression’ or the ‘rhetorical hyperbole’ which has traditionally added much to the discourse of our Nation." Milkovich , 497 U.S. at 20, 110 S.Ct. 2695.

In determining whether an allegedly false statement is protected under the First Amendment as rhetorical hyperbole, "the pivotal questions are whether [the challenged] statements can reasonably be interpreted as stating or implying defamatory facts about plaintiff and, if so, whether the defamatory assertions are capable of being proved false." Jaillet t , 238 Ga.App. at 890, 520 S.E.2d 721 ; Horsley v. Rivera , 292 F.3d 695 (11th Cir. 2002). "Although the fictional or humorous nature of a publication will not necessarily insulate it from a libel claim, if the allegedly defamatory statement could not be reasonably understood as describing actual facts about the plaintiff or actual events in which he participated, the publication will not be libelous." Bollea v. World Championship Wrestling, Inc. , 271 Ga.App. 555, 558, 610 S.E.2d 92 (2005).

"The test to be applied in determining whether an allegedly defamatory statement constitutes an actionable statement of fact requires that the court examine the statement in its totality in the context in which it was uttered or published." Id. (quoting Ollman v. Evans , 750 F.2d 970, 1000 (D.C. Cir. 1984) ); Horsley v. Feldt , 304 F.3d 1125, 1131 (11th Cir. 2002) (noting that the Court must "consider the circumstance in which the statement was expressed"); Bryant v. Cox Enterprises , 311 Ga.App. 230, 238, 715 S.E.2d 458 (2011) ("[T]hese statements cannot be considered in isolation to determine whether they are true or false. Rather, we must construe each statement in the context of the entire writing to assess the construction placed upon it by the average reader."). "Generally, whether a published statement is defamatory is a question for the jury." Executive Excellence, LLC v. Martin Bros. Investments, LLC , 309 Ga.App. 279, 290, 710 S.E.2d 169 (2011). However, "[i]f the meaning of a publication is so unambiguous so as to bear only one reasonable interpretation, the determination as to whether it is defamatory is for the court." Bryant v. Cox Enterprises, Inc. , 311 Ga. App. 230, 235, 715 S.E.2d 458 (2011) ; Macon Telegraph Pub. Co. v. Elliott , 165 Ga.App....