Russe v. Harman
| Docket Number | CIVIL 1:21-cv-00270-MR-WCM |
| Decision Date | 12 July 2023 |
| Parties | RUPA VICKERS RUSSE, Plaintiff, v. CINDIE HARMAN, Defendant. |
| Court | U.S. District Court — Western District of North Carolina |
THIS MATTER is before the Court on the Defendant's Motion for Judgment on the Pleadings [Doc. 42], the Plaintiff's Motion in Limine to Take Judicial Notice [Doc. 57], the Defendant's Motion for Summary Judgment [Doc. 65], the Defendant's Motion to Exclude Phaedra Xanthos from Testifying as Plaintiff's Expert [Doc. 67] the Plaintiff's Motion for Summary Judgment [Doc. 72] and the Plaintiff's Motion to Seal Plaintiff's Medical Records [Doc. 73].
Before the Court is a defamation case brought by a candidate for public office against an internet commentator. On October 5, 2021, the Plaintiff Rupa Vickers Russe (“Plaintiff”) filed this action against Cindie Harman (“Defendant”). [Doc. 3]. In her Complaint, the Plaintiff asserts claims against the Defendant for libel per se, libel per quod, unfair and deceptive trade practices, and intentional infliction of emotional distress. [Id. at ¶¶ 30-55].
On October 5, 2022, the Defendant moved for judgment on the pleadings with respect to all of the Plaintiff's claims. [Doc. 42]. On December 1, 2022, the Plaintiff filed a Motion in Limine to Take Judicial Notice (“Motion to Take Judicial Notice”) [Doc. 57]. In her Motion to Take Judicial Notice, the Plaintiff requests that this Court take judicial notice of the following:
[Id. at 1].
On January 6, 2023, the Defendant moved for summary judgment with respect to all of the Plaintiff's claims. [Doc. 65]. The Defendant also moved to exclude the testimony of the Plaintiff's expert witness, Phaedra Xanthos. [Doc. 67].
On January 20, 2023, the Plaintiff moved for summary judgment with respect to her claims for libel per se, unfair and deceptive trade practices, and intentional infliction of emotional distress. [Doc. 72; Doc. 72-1 at 29]. The Plaintiff also moved to file her medical records under seal. [Doc. 73].
Federal Rule of Civil Procedure 12(c) provides that “[a]fter the pleadings are closed - but early enough not to delay trial - a party may move for judgment on the pleadings.” A Rule 12(c) motion tests only the sufficiency of the complaint and does not resolve any disputes of fact. Drager v. PLIVA USA, Inc., 741 F.3d 470, 474 (4th Cir. 2014). A motion for judgment on the pleadings pursuant to Rule 12(c) is analyzed under the same standard as a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See id.; Burbach Broadcasting Co. of Delaware v. Elkins Radio Corp., 278 F.3d 401, 406 (4th Cir. 2002). A court thus accepts all well-pled facts as true and construes the facts in the light most favorable to the plaintiff as the nonmoving party. Burbach Broadcasting Co. of Delaware, 278 F.3d at 405-06; Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). However, a court does not consider “legal conclusions, elements of a cause of action, and bare assertions devoid of further factual enhancement.” Nemet Chevrolet, Ltd. V. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009). Nor does a court accept as true “unwarranted inferences, unreasonable conclusions, or arguments.” Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 n. 26 (4th Cir. 2009). The key difference between Rule 12(b)(6) and Rule 12(c) is that in ruling on a Rule 12(c) motion the court may consider the answer as well as the complaint. See Hartford Cas. Ins. Co. v. Gelshenen, 387 F.Supp.3d 634, 637 (W.D. N.C. 2019), aff'd 801 Fed.Appx. 915 (4th Cir. 2020).
Summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A factual dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A fact is material only if it might affect the outcome of the suit under governing law. Id., 106 S.Ct. at 2510.
The movant has the “initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986) (internal citations omitted).
Once this initial burden is met, the burden shifts to the nonmoving party. The nonmoving party “must set forth specific facts showing that there is a genuine issue for trial.” Id. at 322 n.3, 106 S.Ct. at 2552 n.3. The nonmoving party may not rely upon mere allegations or denials of allegations in his pleadings to defeat a motion for summary judgment. Id. Rather, the nonmoving party must oppose a proper summary judgment motion with citation to “depositions, documents, electronically stored information, affidavits or declarations, stipulations ..., admissions, interrogatory answers, or other materials” on the record. See id.; Fed.R.Civ.P. 56(c)(1)(a). Courts “need not accept as true unwarranted inferences, unreasonable conclusions, or arguments.” Eastern Shore Mkt. Inc. v. J.D. Assoc.'s, LLP, 213 F.3d 175, 180 (4th Cir. 2000). The nonmoving party must present sufficient evidence from which “a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2510; accord Sylvia Dev. Corp. v. Calvert Cnty., Md., 48 F.3d 810, 818 (4th Cir. 1995).
When ruling on a summary judgment motion, a court must view the evidence and any inferences from the evidence in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513. Where, as here, the parties have filed cross-motions for summary judgment, the Court must consider “each motion separately on its own merits ‘to determine whether either of the parties deserves judgment as a matter of law.'” Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (quoting Philip Morris Inc. v. Harshbarger, 122 F.3d 58, 62 n.4 (1st Cir. 1997)).
The following facts are not in dispute, unless otherwise noted. The Defendant is a resident of Madison County, North Carolina. [Harman Dep., Doc. 72-31 at 6]. The Plaintiff is currently a resident of Virginia. [Russe Dep., Doc. 65-3 at 9]. In 2020, the Plaintiff resided in Madison County, North Carolina. [See Id. at 17, 31-32, 49, 53-56, 58-59].
In January of 2020, the Plaintiff began collecting signatures in an attempt to get her name on the November 2020 ballot as an unaffiliated candidate for the North Carolina House of Representatives. [Id. at 53-55]. The Plaintiff was unsuccessful in that effort. [Id. at 54-55]. Thereafter, the Plaintiff emailed the Madison County Democratic Chair to inquire about running for an open seat on the Madison County Board of Commissioners. [Id. at 58]. In July of 2020, the Plaintiff secured the Madison County Democratic Party's nomination for the open county commissioner's seat. [Id. at 58-59].
The Defendant created and operated the website savemadisoncounty.org.[1] [Harman Dep., Doc. 72-31 at 9]. The website is owned by Save Madison County NC LLC, and the Defendant is its only member, manager, or member manager. [Id. at 49; see also Doc. 72-23]. Neither Save Madison County NC LLC nor savemadisoncounty.org has any employees. [Harman Dep., Doc. 72-31 at 49]. The LLC does not maintain any bank accounts in its name, and it does not receive funds from any individual, political group, or company. [Id.]. Save Madison County NC LLC is not a party to this action.
On savemadisoncounty.org, the Defendant wrote about “a little bit of everything,” including politics in Madison County. [Id. at 9]. In 2020, the Defendant also used an additional service to send email newsletters notifying readers when new articles were posted to savemadisoncounty.org. [Id. at 50-51]. During the Plaintiff's campaign for the Madison County Board of Commissioners, the Defendant published articles about the Plaintiff on savemadisoncounty.org. [Id. at 19]. The Defendant “[did] not feel that Ms. Russe was fit to be a candidate or to sit as a County Commissioner,” and she “[did] not [write] anything positive” about the Plaintiff. [Id.]
In July of 2020, before the Plaintiff received the Democratic nomination for the open county commissioner's seat, the Defendant emailed the Plaintiff a link to an article the Defendant wrote about the Plaintiff. [Russe Dep., Doc. 65-3 at 61-63]. This email was the Plaintiff's “first notice that [the Defendant] had posted something about [her].” [Id.]. In October and November of 2020, the Plaintiff discovered that the Defendant had published additional articles about her. [Id. at 62].
During the Plaintiff's campaign, the Defendant published the following allegedly defamatory statements about the Plaintiff in articles on savemadisoncounty.org:
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