Powell v. Jones-Soderman

• Decision Date: 26 February 2021
• Docket Number: 20-532-cv
• Parties: Scott Powell, Plaintiff-Appellee, v. Jill Jones-Soderman, Defendant-Appellant, Foundation for the Child Victims of the Family Courts, Defendant.
• Court: U.S. Court of Appeals — Second Circuit

Scott Powell, Plaintiff-Appellee, v. Jill Jones-Soderman, Defendant-Appellant,Foundation for the Child Victims of the Family Courts, Defendant.

20-532-cv

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

February 26, 2021

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 26^th day of February, two thousand twenty-one.

PRESENT: DENNIS JACOBS, JOSEPH F. BIANCO, MICHAEL H. PARK, Circuit Judges.

FOR PLAINTIFF-APPELLEE:

John R. Williams, New Haven, CT.

FOR DEFENDANT-APPELLANT:

DAVID K. LUDWIG (Thomas K. Hedemann, Nicholas E. Gaglio, on the brief), Axinn, Veltrop & Harkrider LLP, Hartford, CT. Appeal from a judgment of the United States District Court for the District of Connecticut (Spector, M.J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Defendant-Appellant Jill Jones-Soderman appeals from a judgment of the district court, entered on January 16, 2020, finding liability and awarding Plaintiff-Appellee Scott Powell damages on his claims for defamation per se and invasion of privacy pursuant to Connecticut law. Powell brought various state law claims against Jones-Soderman arising from her publication of allegedly defamatory statements on her public website falsely accusing Powell of sexually abusing his two minor children. The parties consented to have a United States magistrate judge conduct all proceedings in the case. See 28 U.S.C. § 636(c). Following a bench trial, Magistrate Judge Robert M. Spector found that Jones-Soderman was liable for defamation per se and invasion of privacy because she had acted with reckless disregard for the veracity of the defamatory statements and awarded Powell $40,000 in general damages for emotional distress, as well as $60,000 in economic damages for lost income.¹ We assume the parties' familiarity with the underlying facts, procedural history, and issues on appeal, which we reference only as necessary to explain our decision to affirm.

On appeal, Jones-Soderman raises three challenges to the district court's findings of fact and conclusions of law. First, she argues that the district court failed to consider whether Powellhad sufficiently proven the falsity of her statements, as required to overcome her First Amendment defense to Powell's defamation claim. Second, Jones-Soderman contends that the district court erroneously concluded that Powell had sufficiently proven she had acted with the degree of fault necessary to overcome her First Amendment defense and failed to adequately consider her purported good faith belief in the truth of her statements. Finally, she asserts that the district court erred in calculating Powell's damages award for lost income.

Generally, "[o]n appeal from a bench trial, we review findings of fact for clear error and conclusions of law de novo." Copeland v. Vance, 893 F.3d 101, 110 (2d Cir. 2018) (internal quotation marks omitted). However, "in cases raising First Amendment issues [the United States Supreme Court has] repeatedly held that an appellate court has an obligation to make an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression." Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 499 (1984) (internal quotation marks omitted); accord Celle v. Filipino Rep. Enters. Inc., 209 F.3d 163, 182, 184 (2d Cir. 2000). In reviewing the record and evaluating the evidence, we give "special deference . . . to a trial judge's credibility determinations." Bose Corp., 466 U.S. at 500.

I. Falsity

The First Amendment requires that "in a suit by a private plaintiff involving a matter of public concern, . . . allegedly defamatory statements must be provably false, and the plaintiff must bear the burden of proving falsity." Flamm v. Am. Ass'n of Univ. Women, 201 F.3d 144, 149 (2d Cir. 2000). As an initial matter, we disagree with Jones-Soderman's contention that the district court "failed to make any factual findings with respect to the truth or falsity of [her] statements."Appellant's Br. at 17. The district court recounted Powell's trial testimony in which he, among other things, vehemently denied the false accusations, and stated that there was "never a scintilla of truth to any of those accusations." Powell v. Jones-Soderman, 433 F. Supp. 3d 353, 367 (D. Conn. 2020) (alteration and internal quotation marks omitted). The district court also summarized, in detail, the evidence in the record that supported a finding that the defamatory statements were false, including the fact that the Connecticut Superior Court had previously discredited the allegations that Powell had sexually abused his two children. Moreover, in its legal reasoning, the district court cited case authority that pertained to circumstances where defamatory statements are "demonstrably false and groundless." Id. at 376 (internal quotation marks omitted). In short, based on the analysis contained in the Memorandum of Decision, it is clear that the district court found that Powell had sufficiently proven that the defamatory statements were false.

We also are unpersuaded by Jones-Soderman's argument that the trial evidence did not support a falsity finding as to her defamatory statements.² As outlined in the district court's findings of fact, the Connecticut Superior Court, pursuant to a March 21, 2016 emergency application bringing sexual abuse allegations against Powell and seeking to transfer custody of his children, conducted a full evidentiary hearing regarding those allegations and concluded thatPowell did not present "an immediate and present risk of physical danger or psychological harm" to his children, and that the children should be returned to his "sole legal and physical custody." Powell, 433 F. Supp. 3d at 366 (internal quotation marks omitted). Thus, in conjunction with Powell's trial testimony, the findings of the Connecticut Superior Court (which Jones-Soderman concedes were introduced into the trial record for the truth of the matters asserted), provided a sufficient basis for the district court to find that Powell had proven the falsity of the alleged defamatory statements.

II. Fault

The First Amendment also requires a plaintiff alleging defamation to prove that the defendant acted with some degree of fault. See Flamm, 201 F.3d at 155. Jones-Soderman asserts that the First Amendment requires Powell to prove that she acted with actual malice. Contrary to her argument, however, it is clearly established, under federal law, that the requisite degree of fault a private individual alleging defamation must prove is the "constitutional minimum of negligence." Lerman v. Flynt Distrib. Co., 745 F.2d 123, 136 (2d Cir. 1984); see also Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974). Having relied on the wrong legal standard, Jones-Soderman has failed to even argue that she has not acted negligently in publishing the defamatory statements, and as a result, she has waived any such argument on appeal.³ See Gross v. Rell, 585 F.3d 72, 95 (2d Cir. 2009). Accordingly, we agree with the district court that the First Amendment did not protect Jones-Soderman from liability for publishing the alleged defamatory statements.

To the extent that Jones-Soderman contends that Powell has failed to prove actual malice under state law (rather than in connection with her First Amendment defense), we also find that argument to be unavailing. In Connecticut, "[a] defendant may shield h[er]self from liability for defamation by asserting the defense that the communication is protected by a qualified privilege." Gleason v. Smolinski, 125 A.3d 920, 948 n.32 (Conn. 2015) (first alteration in original) (internal quotation marks omitted). However, a plaintiff may prove actual malice to defeat a qualified privilege defense. See id. "[A]ctual malice requires a showing that a statement was made with knowledge that it was false or with reckless disregard for its truth." Gambardella v. Apple Health Care, Inc., 969 A.2d 736, 747 (Conn. 2009). "[R]eckless disregard may be found when an individual publishes defamatory statements with a high degree of awareness of probable falsity or entertained serious doubts as to the truth of the publication." Id. at 748 (alterations and internal quotation marks omitted).

There is no basis to disturb the finding by the district court, after weighing the evidence and making the necessary credibility determinations at trial, that Jones-Soderman had published statements accusing Powell of sexually abusing his two minor children with reckless disregard for their truth. In making this determination regarding scienter, the district court relied on, inter alia, the following evidence: (1) Jones-Soderman had been paid and retained by Powell's ex-spouse to conduct an evaluation so that she could try to regain custody of the two children, who were in Powell's custody; (2) prior to publishing the allegations on her website, Jones-Soderman had reviewed clinical findings in an expert's 2011 report revealing that Powell's children may have suffered from various psychological disorders that would strongly militate against the credibility of the children's sexual abuse accusations against Powell and "conclud[ing] that the children werenot being truthful in making allegations...