Rich v. Fox News Network, LLC

• Decision Date: 02 August 2018
• Docket Number: 18 Civ. 2223 (GBD)
• Parties: Joel RICH and Mary Rich, Plaintiffs, v. FOX NEWS NETWORK, LLC, Malia Zimmerman, in her individual and professional capacities, and Ed Butowsky, in his individual and professional capacities, Defendants.
• Court: U.S. District Court — Southern District of New York

322 F.Supp.3d 487

Joel RICH and Mary Rich, Plaintiffs,

v.FOX NEWS NETWORK, LLC, Malia Zimmerman, in her individual and professional capacities, and Ed Butowsky, in his individual and professional capacities, Defendants.

18 Civ. 2223 (GBD)

United States District Court, S.D. New York.

Signed August 2, 2018

Leonard A. Gail, Eli Johnson Kay-Oliphant, Suyash Agrawal, Massey & Gail LLP, Chicago, IL, Arun Srinivas Subramanian, Elisha Brandis Barron, Yoonhee Gloria Park, Susman Godfrey L.L.P., New York, NY, for Plaintiffs.

Dane Hal Butswinkas, Kevin Taylor Baine, Williams & Connolly LLP, Washington, DC, Joseph M. Terry, Pro Hac Vice, Katherine Anne Petti, Williams & Connolly LLP, Katherine Maeve Wyman, Dechert, LLP, New York, NY, David H. Stern, Dechert LLP, Los Angeles, CA, David Butler Harrison, Spiro Harrison, Short Hills, NJ, for Defendants.

MEMORANDUM DECISION AND ORDER

GEORGE B. DANIELS, United States District Judge:

Plaintiffs Joel and Mary Rich bring this action against Defendants Fox News Network, LLC, Fox News reporter Malia Zimmerman (together with Fox News, the "Fox Defendants"), and Fox News contributor Ed Butowsky asserting claims for intentional infliction of emotional distress ("IIED") and for aiding and abetting and conspiring to intentionally inflict emotional distress on Plaintiffs. (Compl, ECF No. 7, ¶¶ 135–71.) Plaintiffs principally allege that Defendants conspired to cause Plaintiffs severe emotional distress by publishing a news article reporting that their son, Seth Rich, a former Democratic National Committee ("DNC") employee, was murdered for leaking sensitive, private emails from DNC servers to WikiLeaks. (See id. ) Plaintiffs also assert a claim against all Defendants for tortious interference with Plaintiffs' contract with Fox News contributor and private investigator Rod Wheeler, as well as a claim against Fox News for its negligent supervision and/or retention of Zimmerman and Wheeler.¹ (Id. ¶¶ 172–84.)

Defendants move to dismiss the complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.² (See ECF Nos. 35, 51.)

Defendants' motions to dismiss for failure to state a claim are GRANTED.

I. FACTUAL BACKGROUND

Plaintiffs are the parents of Seth Rich, a Democratic National Committee ("DNC") employee who was murdered on July 10, 2016. (Compl. ¶¶ 2, 13, 16.) Although the murder is still being investigated by the Washington D.C. Metropolitan Police Department ("MPDC") and remains unresolved, the MPDC's investigation supports the conclusion that Seth Rich's murder was the result of a botched robbery. (Id. ¶ 17.) According to Plaintiffs, however, Defendants have publicized a different and patently fictitious story about the circumstances of their son's murder.

On July 22, 2016, more than 44,000 private emails from the DNC were published on a website maintained by the organization known as WikiLeaks. (Id. ¶ 19.) According to Plaintiffs, a conspiracy theory developed among some political groups that Seth Rich was murdered because he provided the DNC emails to WikiLeaks. (Id. ¶¶ 3, 22.) On August 22, 2016, Plaintiffs issued a response to the conspiracy theory, which stated, in part:

[S]ome are attempting to politicize this horrible tragedy, and in their attempts to do so, are actually causing more harm than good and impeding ... the ability of law enforcement to properly do their job. For the sake of finding Seth's killer, and for the sake of giving the family the space they need at this terrible time, they are asking for the public to refrain from pushing unproven and harmful theories about Seth's murder.

(Id. ¶ 23.)

On or about December 17, 2016, Butowsky made contact with Plaintiffs through, a Facebook post indicating that he was "looking to connect with anyone Jewish in Omaha[,] Nebraska." (Compl. ¶ 25.) Butowsky spoke with Plaintiffs by phone and informed them that he had heard WikiLeaks received the DNC emails from Seth Rich. (Id. ¶¶ 25–26.) Plaintiffs, however, denied that their son had done so. (Id. ¶ 26.) On January 3, 2017, Butowsky sent Joel Rich a follow-up email with the subject line, "Please call ed [sic] Butowsky. We met through Jeremy from your temple." (Id. ¶ 27.)

That same day, Zimmerman emailed Brad Bauman, who was handling press inquiries on Plaintiffs' behalf, asking for information about Seth Rich's murder. (Id. ¶ 28.) When Bauman responded, Zimmerman wrote back that she "would want to get the information directly from [Joel Rich] or law enforcement to ensure its accuracy." (Id. ) Accordingly, on January 5, 2017, Zimmerman emailed Joel Rich requesting information about Seth for stories she was writing, claiming that she wanted to "bring further attention to his case." (Id. ¶ 30.) Joel Rich responded by sending Zimmerman information about Seth as well as photographs of him. (Id. )

On January 20, 2017, Butowsky called Joel Rich and encouraged him to look at Seth's bank account to see if there were any payments posted from WikiLeaks. Plaintiffs, however, again assured Butowsky that rumors about Seth Rich and WikiLeaks were "baseless." (Id. ¶¶ 31–32.)

On February 23, 2017, Butowsky sent a text message to Rod Wheeler stating that he was "looking for some assistance on something that happened in Washington" and asking him to call. (Id. ¶ 34.) Wheeler, a former MPDC homicide detective turned private investigator, was then under contract with Fox News to appear as an on-air contributor, as well as to provide "off-air assistance, as requested by Fox."³ (Id. ¶ 33.) When Wheeler called, Butowsky stated that he was working with Zimmerman at Fox News on an article about Seth Rich and wanted Wheeler to conduct an investigation into his murder. (Id. ¶ 35.)

On February 28, 2017, Wheeler met with Butowsky and Zimmerman. (Id. ¶ 37.) Plaintiffs allege that Butowsky, Zimmerman, and Fox News "sought to have Wheeler plausibly corroborate the sham story ... that Seth gave the DNC emails to WikiLeaks." (Id. ¶ 39.) That same day, Butowsky sent an email to Plaintiffs offering to hire Wheeler on their behalf to investigate their son's murder, (Id. ¶ 41.) Wheeler also spoke with Plaintiffs directly about the prospective investigation, though he did not mention that he had met with Zimmerman. (Id. ¶ 43.)

On March 3, 2017, Butowsky sent Joel Rich a draft of an engagement agreement between Plaintiffs and Wheeler, which stated that Wheeler would provide "media representation" for the Rich family and that he would "[i]nterview, investigate, and represent" Seth's family members "in any and all media contacts and with regards to the official police investigation surrounding the death of Seth Rich." (Id. ¶ 45.) Plaintiffs, however, told Butowsky and Wheeler that they would not allow Wheeler to serve as their media representative unless Plaintiffs would have complete control over the comments Wheeler made publicly on their behalf. (Id. ¶¶ 46–47.) Butowsky told Plaintiffs that he would accept Plaintiffs' condition. (Id. ¶ 47.)

On March 5, 2017, Butowsky followed up and urged Plaintiffs to allow him to hire and pay for Wheeler's services on their behalf, appealing to their "need to get closure, as a family." (Id. ¶ 49.) Butowsky assured Plaintiffs that his motivation in offering to pay Wheeler on Plaintiffs' behalf was purely altruistic, and that he was concerned about the rumors circulating about Seth, (Id. ¶ 50.) Butowsky further assured Plaintiffs that he would not be involved any longer and that Wheeler would take his directions from, and provide all information directly to, Plaintiffs. (Id. ¶ 51.) Butowsky told Plaintiffs that they would "never see me ever talk about this anywhere." (Id. ) In a phone call with Joel Rich on March 13, 2017, Butowsky reiterated that he would respect Wheeler's obligation not to speak about his investigation to anyone but Plaintiffs. (Id. ¶ 54.)

On March 14, 2017, Plaintiffs executed a contract with Wheeler's private investigation firm, Capitol Investigations, LLC. (Id. ¶ 56.) The contract stated, among other things, that "[t]he representation shall not include media representation, unless otherwise permitted by [Plaintiffs] in writing." (Id. ¶ 57.) The contract also stated, "Capitol Investigations shall not release any information regarding the investigation, including but not limited to findings, working theories or path [sic] forward to any third party without prior authorization by [Plaintiffs] unless that third party is an investigating agency, i.e. Metropolitan Police Department and the FBI." (Id. )

On April 9, 2017, Wheeler sent a text message to Zimmerman stating, "I'm ready to say Seths [sic] Death [sic] was not a botched robbery." (Id. ¶ 60.) On April 18, 2017, Butowsky sent Wheeler a text message stating that he would be "meeting [White House Press Secretary] Sean Spicer and want you with me." (Id. ¶ 61.) Wheeler and Butowsky met with Spicer two days later and provided Spicer with written materials relating to Wheeler's investigation. (Id. ¶ 63.) Neither Wheeler nor Butowsky asked Plaintiffs for permission prior to meeting with Spicer, nor had they informed Plaintiffs of the meeting. (Id. ¶ 65.)

On April 24, 2017, and with Plaintiffs' approval, Wheeler obtained an interview with MPDC Detective Delia-Camera, the lead homicide detective investigating Seth Rich's murder. (Id. ¶ 66.) The night before the interview, Butowsky sent an email to Wheeler stating, "Delia camera [sic] is either helping us or we will go after him as part of the coverup [sic]." (Id. ¶ 67.) Zimmerman then sent Wheeler several emails, some of which were copied to Butowsky, with information about Detective Delia-Camera and the MPDC's investigation into Seth Rich's murder. (Id. ¶ 68.)

On May 10, 2017, Butowsky and Zimmerman advised Wheeler that an FBI source had confirmed that emails were exchanged between Seth and WikiLeaks. (Id. ¶ 69.) Butowsky and Zimmerman also told Wheeler that they would be meeting with the source and would provide Wheeler with details from the meeting....