Waring v. William Morrow & Co., Inc.

• Decision Date: 14 April 1993
• Docket Number: Civ. A. No. H-92-1478.
• Citation: 821 F. Supp. 1188
• Parties: Richard WARING, Plaintiff, v. WILLIAM MORROW & COMPANY, INC., Defendant.
• Court: U.S. District Court — Southern District of Texas

821 F. Supp. 1188

Richard WARING, Plaintiff, v. WILLIAM MORROW & COMPANY, INC., Defendant.

Civ. A. No. H-92-1478.

United States District Court, S.D. Texas, Houston Division.

April 14, 1993.

Bill R. Jones, Livingston, TX and Mark William Long, Riddle & Long, Houston, TX, for plaintiff.

William Wesley Ogden, Ogden Gibson & White, Houston, TX, for defendants.

Robert Stephen Ferrell, Jr., Giessel Stone Barker & Lyman and Craig E. Ferrell, Jr., Director of Legal Services, Houston, TX, for movant.

ORDER

NORMAN W. BLACK, Chief Judge.

This defamation action relates to the publication by Defendant of a book entitled "Sleeping With the Devil." Plaintiff alleges that the book libels him by describing him as an informant, snitch and contact cultivated in the shadows of the night and by giving the impression that Plaintiff has information that could put his life in danger. The complaint as against the author has been dismissed without prejudice pursuant to Rule 4(j) for failure to obtain service. Defendant William Morrow & Company, the publisher of the book, has moved for summary judgment supported by affidavits, deposition testimony, and a transcript of an interview with Plaintiff by the book's author. Plaintiff has filed his opposition to the motion for summary judgment, and has moved to file an amended complaint adding a claim for false light invasion of privacy. Defendant opposes the motion to amend, and has asked the Court to strike an amended complaint filed by Plaintiff without leave. The Court has reviewed the pending motions which are now ripe for decision.

The United States Supreme Court has held that a motion for summary judgment is properly granted unless there is evidence "on which the jury could reasonably find for the plaintiff. The judge's inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the Plaintiff is entitled to a verdict." Anderson v. Liberty Lobby, 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). Rule 56, no longer a disfavored procedure in federal practice, is an integral part of the Federal Rules of Civil Procedure and recognizes a party's right to demonstrate that certain claims have no factual basis and to have those unsupported claims disposed of prior to trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In the case at bar, Plaintiff has failed to raise a genuine issue of material fact and Defendants are entitled to summary judgment.

Initially, the Court notes that it is a question of law whether the statements in the book are capable of a defamatory meaning. Old Dominion Branch No. 496 v. Austin, 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974); Carr v. Brasher, 776 S.W.2d 567 (Tex.1989). In the case at bar, the Court has read in full the passages relating to Plaintiff and finds that they are unambiguously nonde-famatory. Plaintiff is portrayed in the book as a private investigator who comes into possession of information regarding a planned homicide and reports the information promptly to a friend with the police department so that steps can be taken to prevent the woman's death, all with the knowledge that these actions could place his own life in danger. This is not capable of a defamatory meaning; indeed, it is highly laudatory.

Plaintiff argues that the language on page 294 of the book regarding "informants, snitches, contacts ... cultivated in the shadows of the night" is capable of a defamatory meaning precluding summary judgment. Plaintiff cannot avoid summary judgment, however, by taking statements out of context in an attempt to argue that they are capable of a libelous meaning. Raymer v. Doubleday & Company, Inc., 615 F.2d 241, 245 (5th Cir.), cert. denied 449 U.S. 838, 101 S.Ct. 115, 66 L.Ed.2d 45 (1980). The segment in which the statement appears is as follows:

The two cops thought along very different lines. With Kenny, everything was black and white. John Liles existed in a sea of gray. His colleagues and companions were informants, snitches, contacts he cultivated in the shadows of the night. Where Kenny Williamson was direct and modest, John Liles was, by nature, furtive, mysterious ...

It is apparent that the statement cited by Plaintiff refers not to Plaintiff, but to Liles and is used to emphasize the contrast between the two criminal investigators. It is repeatedly made clear in the book, and admitted by Plaintiff, that Plaintiff and Liles were friends and "drinking buddies" and it was for this reason that Plaintiff contacted Liles with his information. Plaintiff's attempt to take this statement out of context to raise a question of fact regarding defamatory meaning must fail, and Defendant is entitled to summary judgment.

Defendant's motion for summary judgment should also be granted on the basis of substantial truth. Under Texas law, substantial truth is an absolute defense in defamation actions. Cranberg v. Consumers Union of United States, Inc., 756 F.2d 382, 388 (5th Cir.), cert. denied 474 U.S. 850, 106 S.Ct. 148, 88 L.Ed.2d 122 (1985); McIlvain v. Jacobs, 794 S.W.2d 14 (Tex.1990). The test is "whether the alleged...