Walters v. Linhof

• Decision Date: 17 March 1983
• Docket Number: Civ. A. No. 82-K-1801.
• Citation: 559 F. Supp. 1231
• Parties: Vernon C. WALTERS, et al., Plaintiffs, v. Eric LINHOF, et al., Defendants.
• Court: U.S. District Court — District of Colorado

559 F. Supp. 1231

Vernon C. WALTERS, et al., Plaintiffs, v. Eric LINHOF, et al., Defendants.

Civ. A. No. 82-K-1801.

United States District Court, D. Colorado.

March 17, 1983.

COPYRIGHT MATERIAL OMITTED

Alan N. Jensen, Colorado Springs, Colo., Martin M. Ostrow, Los Angeles, Cal., for plaintiffs.

Robert A. Dufty, Dufty & Schoenwald, Denver, Colo., for defendants.

MEMORANDUM OPINION AND ORDER GRANTING PARTIAL SUMMARY JUDGMENT

KANE, District Judge.

Plaintiffs' complaint asserts four claims of alleged defamation by defendants when plaintiffs were seeking recommendations and approvals from agencies of El Paso County, Colorado, and from the El Paso Board of County Commissioners for a construction project near Monument, Colorado. These approvals included rezoning requests. The allegedly defamatory statements were contained in letters by various defendants to the land use department, county officials and to the editor of the Monument Tribune newspaper. Citizenship of the parties is diverse. The amount in controversy exceeds $10,000. Subject matter jurisdiction vests under Title 28 U.S.C. § 1332.

The first claim asserts that on November 9, 1981, defendant Linhof sent a letter to the El Paso County Land Use Department that referred to plaintiff Walters as "a land option speculator posing as a developer." The second claim also arises from a letter to the land use department, by defendant Haymond in which he said in referring to plaintiffs, "... we have reason to urge that the County Commissioners examine thoroughly the financial capability and technical knowledge of this developer...." The third claim arises from a letter to the editor of the Monument Tribune published January 7, 1982, in which defendant Woodruff, referring to plaintiffs, said "I was shocked to learn that many of the California towns where Walters claimed to have experience were very familiar to me. My thoughts wandered to over-built and crowded subdivisions, rundown and vacant shopping centers, and industrial complexes which are real eye-sores." The fourth and final claim charges that defendants Linhof, Haymond, Rosenow and Roeming "on several occasions in November, 1981, presented to various public officials in El Paso County, Colorado, a letter from one Robert Cruse¹ that contained statements about the Plaintiffs which were untrue, with a photograph of the Plaintiffs' headquarters in California." The exact nature of the statements in this letter or whether the photograph was in fact a photograph of plaintiffs' headquarters is not articulated.

Defendants have asserted six counterclaims for abuse of process, outrageous conduct, negligent misrepresentation, fraudulent misrepresentation, civil conspiracy and frivolous and groundless action constituting a violation of C.R.S.1973 § 13-17-101.

Defendants move for summary judgment on the complaint for six reasons: (1) failure to state a claim; (2) the comments were not defamatory as a matter of law; (3) the comments were privileged under the constitutions of the United States and the State of Colorado; (4) the comments were absolutely privileged; (5) the comments were consented to by plaintiffs; and (6) the comments were qualifiedly privileged. Plaintiffs have opposed the motion on each ground.

Summary judgment under Rule 56, F.R.Civ.P. is a drastic remedy that is appropriate only where there exists no genuine issue of material fact. Jones v. Nelson, 484 F.2d 1165, 1168 (10th Cir.1973); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-159, 90 S.Ct. 1598, 1608-1609, 26 L.Ed.2d 142 (1970); Luckett v. Bethlehem Steel Corp., 618 F.2d 1373, 1383 (10th Cir.1980). Under the rule, no margin exists for disposition of factual issues, and it may not serve as a substitute for trial of the case nor permit the parties to dispose of the litigation through affidavits. Commercial Iron & Metal Co. v. Bache & Co., 478 F.2d 39, 41 (10th Cir.1973).

The Colorado courts have "frequently granted" summary judgments in defamation actions, see, Manuel v. Fort Collins Newspapers, Inc., 42 Colo.App. 324, 599 P.2d 931, 934 (1979) rev'd on other grounds, 631 P.2d 1114 (1980), as have federal courts; Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858 (5th Cir.1970); Washington Post v. Keogh, 365 F.2d 965 (D.C.Cir.1967), cert. denied, 385 U.S. 1011, 87 S.Ct. 708, 17 L.Ed.2d 548 (1967). In Manuel v. Fort Collins Newspapers, supra, the court (quoting Kidder v. Anderson, 354 So.2d 1306 (La. 1978) said:

In order for plaintiff to be successful on the threshold issue of summary judgment, he must come forth with strong evidence, convincingly clear evidence, that the defendant knew the statements published were false or that he had reckless disregard of whether they were false or not. Otherwise, if plaintiff is allowed to escape summary judgment by simply a minimum showing he has thus effectively invoked the `chilling effect of trial' doctrine.

In DiLeo v. Koltnow, 200 Colo. 119, 613 P.2d 318, 323 (1980) the Colorado Supreme Court said, "Were not summary judgment granted in proper cases the threat of protracted litigation might have a chilling effect upon the full and free exercise of the First Amendment sought to be protected by New York Times v. Sullivan and its progeny." This standard of proof is applicable in the instant action.

Defamation which is oral is slander and that which is written is libel. The elements of a cause of action for defamation (slander and libel) are: (1) a defamatory statement concerning another; (2) published to a third party; (3) with fault amounting to at least negligence on the part of the publisher; and (4) either actionability of the statement irrespective of special damages or the existence of special damages to the plaintiff caused by the publication. Restatement of the Law of Torts 2d, section 558 (1979); Williams v. Burns, 540 F.Supp. 1243 (D.Colo.1982) (Kane, J.).

FAILURE TO STATE A CLAIM

Defendants contend that plaintiffs' complaint is vague and ambiguous and fails to state a claim upon which relief can be granted. Plaintiffs' brief does not address this argument. Under the federal rules, a claim is not required to state all the elements of a particular cause of action, but plaintiff must at a minimum plead "a short and plain statement of the claim showing that the pleader is entitled to relief ..." Rule 8(a)(2), F.R.Civ.P. The first, second and third claims of plaintiffs' complaint meet the Rule 8 requirements, but the fourth claim is vague and fails to state a claim. Plaintiffs have not substantially set forth the words alleged to be defamatory and untrue nor any facts that would establish publication. The fourth claim for relief is dismissed for failure to state a claim.

PUBLIC v. PRIVATE PLAINTIFFS

I am required initially to determine whether plaintiffs are public figures, public officials or private figures and whether the issues involved are matters of public or general concern. If plaintiffs are public figures, plaintiffs would be required to prove publication of defamatory falsehood "with `actual malice' — that is, with knowledge that it was false or with reckless disregard of whether it was false or not." New York Times Co. v. Sullivan, 376 U.S. 254, 280, 84 S.Ct. 710, 726, 11 L.Ed.2d 686, 95 A.L.R.2d 1412 (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). The Supreme Court has described two ways that one might become a public figure:

For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment.

Gertz v. Welch, supra at 345, 94 S.Ct. at 3009. See also, DiLeo v. Koltnow, 200 Colo. 119, 613 P.2d 318, 321 (1980). Plaintiffs maintain that they are not now and were not during the rezoning proceedings, public figures; defendants disagree arguing that as the proponents of the zoning change, plaintiffs invited public attention and comment. Plaintiffs contend that they may have invited public comment but did not invite "the Defendants to abuse them in print." (Brief in opposition, pg. 2).

Plaintiffs in this action, like the plaintiff in DiLeo, supra, are not public figures for all purposes because they do not occupy a position having "persuasive power and influence." The Colorado court reasoned in DiLeo, supra 613 P.2d at 322 that

in determining whether a person is a public figure in this second category, we must primarily focus on the `nature and extent of an individual's participation in the particular controversy giving rise to the defamation.'

Wolston v. Readers Digest Ass'n, Inc., 443 U.S. 157, 167, 99 S.Ct. 2701, 2707, 61 L.Ed.2d 450 (1979) citing Gertz, supra, 418 U.S. at 352, 94 S.Ct. at 3103, 41 L.Ed.2d at 812. See also, Hutchinson v. Proxmire, 443 U.S. 111, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979). I find that plaintiffs' participation in the rezoning proceeding was significant enough to qualify them as public figures. One does not become a public figure simply because the media's attention was attracted, Id.; Wolston, supra; Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976), but plaintiffs here "thrust themselves to the forefront of a particular public controversy to affect its resolution." DiLeo, supra 613 P.2d at 321.

STATEMENTS NOT DEFAMATORY AS A MATTER OF LAW

Defendants argue that the statements made in the letters are not defamatory as a matter of law. The allegedly defamatory statement by defendant Linhof is found in the third paragraph of his November 9, 1981 letter to the El Paso County Land Use Department which defendants assert was written in response to the department's request for comment dated October 8, 1981....