Spirito v. Peninsula Airport Comm'n

• Decision Date: 21 November 2018
• Docket Number: Civil Action No. 4:18cv58
• Citation: 350 F.Supp.3d 471
• Parties: Ken SPIRITO, Plaintiff, v. PENINSULA AIRPORT COMMISSION, etc., et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

350 F.Supp.3d 471

Ken SPIRITO, Plaintiff,

v.PENINSULA AIRPORT COMMISSION, etc., et al., Defendants.

Civil Action No. 4:18cv58

United States District Court, E.D. Virginia, Newport News Division.

Signed November 21, 2018

David L. Littel, Meghan M. Casey, Parks Zeigler, PLLC, Kellam T. Parks, Law Oftice of Kellam T. Parks PLLC, 4164 Virginia Beach Blvd., Suite 204, Virginia Beach, VA 23452, Counsel for Plaintiff.

Conrad M. Shumadine, Willcox & Savage PC, 440 Monticello Ave., Suite 2200, Hunter W. Sims, Jr., Lauren T. Rogers, Richard J. Conrod, Jr., Kaufman & Canoles PC, 150 W. Main St., Norfolk, VA 23510, Counsel for Defendants.

ORDER

HENRY COKE MORGAN, JR., SENIOR UNITED STATES DISTRICT JUDGE

This matter is before the Court pursuant to six (6) Motions:

• Peninsula Airport Commission ("PAC") Defendants'¹ Motion to take Judicial Notice, Doc. 9;

• PAC Defendants' Second Motion to Take Judicial Notice, Doc. 14;

• PAC Defendants' Motions to Dismiss, Docs. 3-7² ;• The Daily Press, LLC's ("Daily Press’ " or "DP's") Motion to Dismiss, Doc. 23;

• PAC Defendants' Motion to Sever, Doc. 11; and

• DP's Motion to Sever, Doc. 25.

On November 8, 2018, the Court held a hearing on the above motions and, upon consideration of the parties' briefs and arguments in court, the Court RULES as outlined below.

I. BACKGROUND

A. Factual Allegations

This action arises out of several text and Facebook messages about Plaintiff Ken Spirito ("Plaintiff") that were exchanged among the PAC Defendants, reported to the Virginia Department of Transportation ("VDOT"), and published by the Daily Press. Defendants Ortiz, Ford, and Thomas are or were employed in various capacities by the PAC. Doc. 1 at 3-4. Defendant Scott is a Board Member of the PAC and is a member of the City Council of the City of Newport News. Id. at 4. Plaintiff is an airport management professional who was Executive Director of the PAC from 2009 until he was terminated following the events at issue. Id. at 5.

In 2014, the PAC Board of Commissioners voted to approve a contractual arrangement with People Express Airlines and voted to guarantee a loan to People Express "in an effort to facilitate its operation at the airport." Doc. 1 at 6. People Express "operated briefly, but quickly failed and defaulted on the loan." Id. In 2017, VDOT initiated an investigation of the events. Id. Plaintiff alleges he was targeted as being responsible for the loan's failure, and as "the targeting of Plaintiff became widely known, certain disgruntled PAC employees began a digital whispering campaign of unfounded innuendo that Plaintiff was shredding documentary evidence relevant to the People Express investigation." Id.

There was no written policy pertaining to shredding, but Plaintiff alleges there was an "unwritten policy" that sensitive documents should be shredded. Id. at 9-10. During his tenure as Executive Director, Plaintiff had personally shredded documents regularly and openly, approximately one to two times per week on average for approximately eight years. Id. at 11. On March 2, 2017, Plaintiff shredded hard copies of some "old, duplicate airline presentations as part of his routine duties." Id. at 7. That same day, the following text message exchange occurred between Defendant Ortiz and Defendant Ford:

Ortiz: "Wow Ken is shredding shredding shredding."

Ford: "Unbelievable"

Ortiz: "Seems kinda weird"

Ford: "This is getting out of hand!"

Id. at 15. On or about March 2, 2017, Defendant Ford notified Commissioners Steve Mallon and Rob Coleman that she had received the messages and conveyed the contents of the messages about shredding to them. Id. Coleman, allegedly acting in his capacity as a Commissioner and as an agent of the PAC, made a report of the shredding allegation to the State Police. Id. The contents of his statement to the police are unknown. Id.

On April 12, 2017, after being terminated for cause, Defendant Thomas sent the following message to Defendant Scott: "I told you I know about that I know about the paper shredding a couple of weeks ago. I saw Jessica and Ken coming from the shredder when I walked in the office after 8pm. Then I was let go about two weeks later..." Id. at 7. On an earlier, unknown date, Defendant Thomas wrote the following text message to Defendant Scott: "I know about the paper shredding at the airport! ..." Id. at 7. Plaintiff further alleges that the PAC Defendants "acted in whole or in part out of ill-will and malice toward Plaintiff in publishing the implied allegations of improper shredding of documents, despite their knowledge that these implied allegations were false, or, at a minimum, their high degree of certainty that they were false." Id. at 13.

The above messages "were further published and transmitted to others, ultimately finding their way into the VDOT Report relating to the People Express investigation and to the front page of the Daily Press," a Virginia newspaper. Id. at 8. Under the heading "The Defamatory Statements," Plaintiff alleges that DP published three separate defamatory editions. First, in its June 2, 2017, online edition, DP ran a story that included the following:

They [VDOT] reported that they had received two separate reports that former executive director Ken Spirito had shredded and destroyed documents after the auditors asked for airport records. They said they were also given information that Spirito had removed records from the airport.

Doc. 1 at 16. Plaintiff further alleges that the front-page graphic of the June 2, 2017, print version of the Daily Press featured the text exchanges about shredding discussed above. Id.

Next, Plaintiff alleges that the front page of the June 3, 2017, edition of the Daily Press included a "large graphic covering approximately two-thirds of the front page showing an image of evidentiary material overlaid with pictures" of the above messages about shredding by Plaintiff. Id. at 2. The accompanying story in the June 3 edition was about Plaintiff's involvement in the People Express Contract and loan to People Express. Id. Specifically, this article included the following:

The [VDOT] auditors blasted the commission's lack of transparency about the deal, and reported that they had received two separate reports that former airport executive director Ken Spirito had shredded and destroyed documents after they asked for records about the payment. They also received reports that he had removed documents from the airport.

Id. at 16.

Finally, Plaintiff alleges that a June 3, 2017, editorial in the Daily Press made the following statements: "This goes beyond losing jobs. The next question, in light of this audit, becomes whether Spirito or anyone else needs to be brought up on charges. Whether anyone needs to go to prison. Yes, it's that serious."³ Id. at 17.

Plaintiff alleges defamation per se (Count I) and, in the alternative, defamation (Count II) against all defendants. He alleges that the above messages are "defamatory statements by implication about the ‘shredding’ of evidence related to a VDOT investigation of the People Express operation at the Peninsula Airport." Id. at 2.

B. Procedural History

On January 17, 2018, Plaintiff filed a defamation action in state court against the PAC Defendants based on the same facts at issue in this case. See Ken Spirito v. Peninsula Airport Commission Newport News/Williamsburg International Airport, Lisa M. Ortiz, E. Renee Ford, Wilmer K. Thomas, Jr. and Sharon P. Scott, Case No. CL 18-103; Doc. 9 at 1. After a hearing on April 13, 2018, the state court sustained the PAC Defendants' demurrer and gave Plaintiff leave to amend his Complaint. Doc. 14-1 at 88-89. On April 27, 2018, the state court entered a Nonsuit Order, Doc. 9-1 at 280, and on May 23, 2018, Plaintiff filed the present action against the PAC Defendants and Daily Press. Doc. 1.

On June 19, 2018, the PAC Defendants filed their Motions to Dismiss for Failure to State a Claim and joint Memorandum in Support. Docs. 3-8. On the same day, the PAC Defendants filed a Motion for the Court to Take Judicial Notice of Plaintiff's lawsuit in the Circuit Court of Williamsburg/James City County, and a Motion to Sever their claims from those brought against Daily Press, Doc. 11. On July 3, 2018, the PAC Defendants filed another Motion for the Court to Take Judicial Notice of the April 13, 2018, Demurrer Hearing before the Circuit Court of Williamsburg/James City County. Doc. 14. Plaintiff filed his Opposition to these Motions on July 3, 2018. Doc. 16.

On August 10, 2018, Daily Press filed a Motion to Dismiss, Doc. 23, and a Motion to Sever its claims from those brought against the PAC Defendants, Doc. 25. Plaintiff filed his Opposition to these Motions on August 24, 2018, Docs. 31-32, and DP filed its Replies on August 30, 2018, Docs. 33-34.

II. THE PAC DEFENDANTS' MOTIONS FOR JUDICIAL NOTICE

A. Legal Standard

Federal Rule of Evidence 201 provides that a court may judicially notice a fact "that is not subject to reasonable dispute because it ... can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201. Pursuant to this rule, "a federal court may consider matters of public record such as documents from prior state court proceedings in conjunction with a Rule 12(b)(6) motion." Walker v. Kelly, 589 F.3d 127, 139 (4th Cir. 2009), A court "must" take judicial notice when a party requests it, and the court is supplied "with the necessary information." Fed. R. Evid. 201. However, this mandate applies only to "adjudicative facts," which are defined as "the facts of the particular case"; no evidentiary rule deals with judicial notice of other information. Fed. R. Evid. 201 advisory committee notes to 1972 Proposed Rules.

B. Analysis

The PAC Defendants have moved the Court to take judicial notice of the entire case file for the state action Plaintiff filed against them on January 18, 2018, in the Circuit Court of Williamsburg/James City County. See Ken Spirito v. Peninsula Airport...