United States District Court, D. Kansas
TERRY J. CLARK, Plaintiff,
TIME INC. and HEARTLAND GOLF DEVELOPMENT II, LLC, Defendants.
MEMORANDUM AND ORDER
D. CRABTREE UNITED STATES DISTRICT JUDGE.
and the game of golf are not strangers to one another. After
a particularly good round, a golfer might describe his long
and accurate drives as “pointing . . . lasers right at
the . . . flag all day long.” On another day, after a less
successful outing, the same golfer might lament repeated
errant shots into bunkers, claiming he spent the day on the
beach. A course with greens running high on the
Stimpmeter might lead to complaints about the
vagaries of slick greens. A golfer whose wild tee shots
consistently had landed his ball in the trees might say that
he spent most of the day in jail. And, a golfer might
describe a poorly maintained course as a goat ranch.
case arises from the use of hyperbole in an article about a
golf course. On May 29, 2014, defendant Time Inc. published
an article on its GOLF.com website that criticized the former
General Manager of the Hillcrest Country Club in Kansas City,
Missouri, by referring to him as Vlad the
Impaler. Although the article does not mention him
by name, plaintiff Terry J. Clark served as Hillcrest's
General Manager. And, the parties stipulate that the
article's references to Vlad the Impaler are references
to Mr. Clark.
article gives rise to the claims asserted in this lawsuit.
Plaintiff contends that the article's contents-including
the Vlad the Impaler hyperbole-are false statements that have
damaged his reputation and emotional wellbeing. He asserts
two claims against defendants Time Inc. and Heartland Golf
Development II, LLC (“Heartland Golf”). Both
claims arise under Kansas law-one claims defamation and the
other claims intentional infliction of emotional distress.
Defendants move for summary judgment against both (Docs. 31,
33). For reasons explained below, the court grants
defendants' motions because the summary judgment facts
present no genuine issue warranting a trial on either claim.
turning to defendants' summary judgment motions, the
court first addresses the other pending motions in this case.
Plaintiff has filed two motions to strike (Docs. 58, 59).
They ask the court to strike defendants' summary judgment
motions, memoranda, and replies because defendants never
served him with a Notice to Pro Se Litigant Who Opposes A
Motion For Summary Judgment, as D. Kan. Rule 56.1(f)
requires. The court denies plaintiff's motions for
reasons set forth in the first section below. Defendants
respond with three motions to strike of their own (Docs. 50,
52, 53). They ask the court to strike certain materials that
plaintiff has submitted with his responses to defendants'
summary judgment motions. For reasons explained below, in the
second section, the court grants in part and denies in part
defendants' motions to strike.
Plaintiff's Motions to Strike
Plaintiff moves to strike defendants' summary judgment
motions, memoranda in support, and replies because, he
asserts, defendants never served him with a Notice to Pro Se
Litigant Who Opposes A Motion For Summary Judgment
(“Pro Se Notice”), and our court's local
rules required them to serve such a notice. D. Kan. Rule
Any represented party moving for summary judgment against a
party proceeding pro se must serve and file as a separate
document, together with the papers in support of the motion,
the following “Notice To Pro Se Litigant Who Opposes a
Motion For Summary Judgment” with the full texts of
Fed.R.Civ.P. 56 and D. Kan. Rule 56.1 attached.
assert that they did not need to serve plaintiff with the Pro
Se Notice because, when they filed their summary judgment
motions, plaintiff was represented by counsel. To understand
this argument, some more background information is required.
filed this lawsuit through his chosen counsel on May 28,
2015. His counsel represented him in the case through
defendants' filing of their summary judgment motions on
July 15, 2016. Our court's local rules required plaintiff
to file his responses to defendants' summary judgment
motions within 21 days, or by August 5, 2016. See D.
Kan. Rule 6.1(d) (providing a 21-day response time for
responses to dispositive motions). Plaintiff did not file any
responses on August 5. Instead, plaintiff filed a
“Motion Requesting Permission From the Court to Remove
Plaintiff's Attorney Dan Williams.” Doc. 35.
Plaintiff explained that he and his attorney disagreed about
how to proceed with the case. Id. at 1. Plaintiff
also explained that he had asked his attorney to withdraw
from the case but he hadn't done so. Id.
Plaintiff thus asked the court to order his attorney's
removal from the case. Id. Plaintiff simultaneously
filed a Motion for Extension of Time seeking an extension
until August 22 to respond to defendants' summary
judgment motions. Docs. 37, 38.
Judge Kenneth G. Gale convened a telephone conference with
the parties on August 9, 2016. During that conference,
plaintiff's attorney moved to withdraw, and Judge Gale
granted the motion. Doc. 41. Judge Gale also granted
plaintiff's motion requesting the removal of his
attorney. Id. Since then, plaintiff has proceeded
pro se. The court granted plaintiff an extension
until August 22 to file his responses to defendants'
summary judgment motions. Doc. 44. Plaintiff then timely
filed his responses pro se. Docs. 45, 46.
these facts demonstrate, defendants are correct. Plaintiff
was represented by counsel when defendants filed their
summary judgment motions. And so, D. Kan. Rule 56.1(f) did
not require them to serve plaintiff with the Pro Se Notice
“together with their papers in support of the
sure, after plaintiff's counsel withdrew from the case,
plaintiff became a pro se party opposing summary judgment.
While our rule did not require defendants to serve plaintiff
with the Pro Se Notice at that time, defendants might have
fostered the rule's purpose- informing pro se parties
about summary judgment procedures-by serving a Pro Se Notice
even though the rule did not require it explicitly. But,
neglecting to do something that our rules did not require
does not warrant the harsh sanction of striking
defendants' summary judgment motions. This conclusion is
especially appropriate here because the record plainly
establishes that plaintiff was not harmed by the absence of
the Pro Se Notice. Indeed, plaintiff specifically cites D.
Kan. Rule 56.1 in one of his responses to defendants'
summary judgment motions. See Doc. 47 at 7
(“Pursuant to Kansas District Court Rule 56.1,
Plaintiff Terry J. Clark submits the following memorandum in
response to Defendant Time Inc.'s uncontroverted facts .
. . .”). He also responded to defendant Heartland
Golf's explication of the summary judgment standard- one
that included a citation to Fed.R.Civ.P. 56-by stating that
he “agrees with the standard.” Doc. 46 at 24.
responses also complied with the federal and local rules
governing summary judgment. Plaintiff has responded to each
one of defendants' numbered statements of fact, stating
whether he controverts the fact or not. See D. Kan.
Rule 56.1(b)(1) (explaining that “[a] memorandum in
opposition to a summary judgment motion must begin with a
section containing a concise statement of material facts as
to which the party contends a genuine issue exists”).
And, when plaintiff has controverted a proposed fact, he has
cited the summary judgment evidence that, he contends, makes
the fact a disputed one, just as our local rule requires.
See Id. (“Each fact in dispute must be
numbered by paragraph, refer with particularity to those
portions of the record upon which the opposing party relies,
and, if applicable, state the number of movant's fact
that is disputed.”); see also Fed. R. Civ. P.
56(c)(1) (requiring a party “asserting that a fact . .
. is genuinely disputed” to support the assertion with
“particular parts of material in the record” or
“showing that the materials cited do not establish the
absence . . . of a genuine dispute”).
also has provided additional statements of fact that, he
contends, preclude summary judgment. This submission is
precisely what D. Kan. Rule 56.1(b)(2) contemplates.
See D. Kan. Rule 56.1(b)(2) (“If the party
opposing summary judgment relies on any facts not contained
in movant's memorandum, that party must set forth each
additional fact in a separately numbered paragraph, supported
by references to the record . . . .”). And, plaintiff
appended summary judgment materials to each of his responses,
the approach required by our local rules. See D.
Kan. Rule 56.1(d) (explaining how to present the factual
materials that the opposing party uses to base his
opposition). Plaintiff attached 22 separately numbered
exhibits to his response to defendant Heartland Golf's
summary judgment motion and 14 separately numbered exhibits
to his response to defendant Time Inc.'s summary judgment
motion. See Docs. 46, 47.
procedural record, plaintiff cannot credibly complain that
any omission of a Pro Se Notice prejudiced his ability to
respond to the summary judgment motions. He has followed the
appropriate procedures under the rules governing summary
judgment. Although the ultimate outcome of the summary
judgment motions is an adverse one for plaintiff, the court
reaches this decision after considering the merits of his
claims. In short, the summary judgments awarded by this order
do not result from plaintiff's ignorance of the federal
or local summary judgment rules, or his failure to follow
them. The court thus denies plaintiff's Motions to Strike
defendants' summary judgment motions, memoranda in
support, and replies.
Defendants' Motions to Strike
court next turns to defendants' Motions to Strike.
Defendants have filed three, separate motions to strike. They
ask the court to strike certain materials plaintiff has
submitted with his responses to defendants' summary
judgment motions. The court takes up defendants' requests
collectively because many of their arguments overlap.
defendants move to strike Debra Taylor's Affidavit (Doc.
46 at 274-76; Doc. 47 at 287-89). Defendants argue that the
court should exclude this Affidavit because plaintiff never
identified Ms. Taylor in his Rule 26 disclosures. Federal
Rule 37(c)(1) provides: “If a party fails to provide
information or identify a witness as required by Rule 26(a)
or (e), the party is not allowed to use that information or
witness to supply evidence on a motion, at a hearing, or at a
trial, unless the failure was substantially justified or is
harmless.” Fed R. Civ. P. 37(c)(1); see also Vesom
v. Atchison Hosp. Ass'n, 279 F. App'x 624, 631
(10th Cir. 2008) (“The exclusion of evidence presented
out of time is automatic and mandatory unless the violation
was either justified or harmless.” (citation and
internal quotation mark omitted)). A district court has
discretion to decide whether a Rule 26 violation is justified
or harmless and, when doing so, should consider the following
factors: “(1) the prejudice or surprise to the party
against whom the testimony is offered; (2) the ability of the
party to cure the prejudice; (3) the extent to which
introducing such testimony would disrupt the trial; and (4)
the moving party's bad faith or willfulness.”
Jacobsen v. Desert Book Co., 287 F.3d 936, 953 (10th
Cir. 2002) (quoting Woodworker's Supply, Inc. v.
Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th
factors favor exclusion of Ms. Taylor's Affidavit. First,
defendants are prejudiced and surprised by the Affidavit.
Defendants had no notice that plaintiff would rely on Ms.
Taylor as a witness in this case. Plaintiff thus has denied
defendants any opportunity to discover information about this
witness's testimony, including taking her deposition. The
information in the Affidavit also contradicts plaintiff's
deposition testimony about Ms. Taylor's involvement in
the case. Plaintiff testified that Ms. Taylor had read the
article, thought it was ridiculous, and didn't believe
it. But her Affidavit states that she had doubts about
plaintiff after reading the article in 2014. Second, the
ability to cure the prejudice would require reopening
discovery proceedings. This influences the third
factor-reopening discovery after defendants have moved for
summary judgment will disrupt the proceedings. The parties
will need additional time to complete the necessary
discovery, and defendants will have to revise and resubmit
their summary judgment motions. Finally, plaintiff's
failure to disclose Ms. Taylor appears willful. Plaintiff
testified that he has known Ms. Taylor since kindergarten and
that he spoke with her about the article shortly after he
learned of it. Ms. Taylor's Affidavit states that she has
known plaintiff for many years, she read the article that led
to this lawsuit, and she spoke with plaintiff about it. These
facts show that plaintiff certainly knew Ms. Taylor, yet he
failed to disclose her as a witness. The facts warrant
exclusion of Ms. Taylor's Affidavit.
does not address these factors explicitly in his response to
defendants' motions. Instead, plaintiff asserts that he
could not disclose Ms. Taylor's Affidavit because it
“just recently [came] into [his] possession” so
he “is simply supplementing discovery requested by
Defendants” by attaching the Affidavit to his summary
judgment response. Docs. 56 at 1; Doc. 57 at 1. Ms. Taylor
signed her Affidavit on August 11, 2016. So, it's likely
true that plaintiff came to possess the Affidavit shortly
before filing his summary judgment response. But this
apparent fact cannot excuse plaintiff's failure to
disclose Ms. Taylor as a witness. Plaintiff had access to the
substance of Ms. Taylor's Affidavit before he submitted
it with his summary judgment response. Plaintiff and Ms.
Taylor concede that they have known each other for many
years. Ms. Taylor's Affidavit states that plaintiff has
advised her about business activities since the fall of 2012,
and that she hired plaintiff to help her with a business
project. Ms. Taylor asserts “over the last few months,
” her bank “has been harassing [her] over the
fact that [plaintiff] is involved in [the] project.”
Doc. 46 at 275; Doc. 47 at 288. Plaintiff states in his Reply
that this issue with the bank “evolved over the last
few weeks prior to the Affidavits” and “became
very serious” “[o]nly over the last couple of
months before production.” Doc. 57 at 4. If, as
plaintiff concedes, he knew about Ms. Taylor's issue with
the bank months before he produced her Affidavit, he should
have supplemented his disclosures to provide information
about Ms. Taylor to defendants. He did not. His failure
justifies exclusion of Ms. Taylor's Affidavit on summary
the court declines to exclude Ms. Taylor's Affidavit in
its entirety because plaintiff's late disclosure is
harmless. As discussed below, Ms. Taylor's Affidavit
presents no genuine issues of fact that a jury must
decide. The court does exclude, however,
paragraphs 13 and 14 of Ms. Taylor's Affidavit because
they contain inadmissible hearsay statements.
court cannot consider inadmissible hearsay contained in
affidavits on summary judgment because such statements are
inadmissible at trial in any form. Argo v. Blue Cross &
Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th
Cir. 2006); see also Adams v. Am. Guar. & Liab. Ins.
Co., 233 F.3d 1242, 1246 (10th Cir. 2000)
(“Hearsay testimony that would be inadmissible at trial
cannot be used to defeat a motion for summary
judgment”). Here, the Affidavit describes conversations
that Ms. Taylor says she had with a banker about plaintiff.
And, plaintiff offers these statements to prove damage to his
reputation. The statements thus are “out-of-court
written statement[s] . . . now offered to prove the truth of
the matter asserted.” Brown v. Perez, 835 F.3d
1223, 1232 (10th Cir. 2016) (first quoting Herrick v.
Garvey, 298 F.3d 1184, 1191 (10th Cir. 2002); then
citing Fed.R.Evid. 801(c)). Plaintiff offers no exception to
the hearsay rule that would permit the court to consider
these statements on summary judgment. The court thus
concludes that the statements are inadmissible hearsay and
next ask the court to strike a document that plaintiff has
marked Exhibit 190 (Doc. 46 at 285-301). Plaintiff asserts
that this document contains comments about Hillcrest Country
Club that he has found on the internet. Defendants ask the
court to strike this exhibit because plaintiff never
disclosed it as Rule 26 requires. Plaintiff responds that he
performed the internet search sometime around August 2016, so
he only recently came into possession of the document and
could not have disclosed it earlier. But most of the comments
are dated in 2012 and 2013, and so the information was
available to plaintiff much earlier than he disclosed it.
Defendants assert that plaintiff's failure to disclose
this document is not justified and requires exclusion.
court declines to decide whether plaintiff's failure to
disclose this document was justified or harmless because the
court excludes it for another reason-it is not authenticated.
It is well-settled that a court can consider only admissible
evidence when deciding a motion for summary judgment. Fed R.
Civ. P. 56(c)(2); Law Co., Inc. v. Mohawk Constr. &
Supply Co., Inc., 577 F.3d 1164, 1170 (10th Cir. 2009).
“To satisfy the requirement of authenticating or
identifying an item of evidence, the proponent must produce
evidence sufficient to support a finding that the item is
what the proponent claims it is.” Fed.R.Evid. 901(a). A
proponent may establish authenticity by the evidence's
“appearance, contents, substance, internal patterns, or
other distinctive characteristics of the item, taken together
with all the circumstances.” Fed. R. Civ. 901(b)(4);
Law Co., 577 F.3d at 1171. Here, plaintiff has no
response to defendants' challenge to the document's
authenticity. The court cannot discern from the appearance or
content of Exhibit 190 that it is, in fact, genuine comments
posted on the internet. The court thus excludes Exhibit 190
because plaintiff has failed to authenticate it.
third target of defendants' motion to strike is
paragraphs 11 through 13 and 15 through 20 plaintiff's
Affidavit (Doc. 46 at 267-73; Doc. 47 at 280-86). Defendants
claim these portions of the Affidavit contain inadmissible
hearsay. The court agrees. These paragraphs describe
conversations plaintiff says he had with four individuals
about the article at issue here. Plaintiff's Affidavit
provides these individuals' out-of-court statements about
their reactions to the article and their beliefs about its
truth. Plaintiff offers these statements to prove that the
article was false. So, each paragraph contains an
“out-of-court written statement . . . now offered to
prove the truth of the matter asserted.”
Brown, 835 F.3d at 1232 (citations omitted). The
statements thus are hearsay. Plaintiff offers no hearsay
exception that could apply to these statements. And, without
such exception, the statements are inadmissible at
trial. The court thus cannot consider these
statements on summary judgment.
defendants ask the court to strike a document that plaintiff
has marked as Exhibit 155 (Doc. 47 at 84-88). Plaintiff's
summary judgment response describes this document as one
containing “email[s] from Chad Weinand Golf Course
Architect.” Doc. 47 at 26. Plaintiff made no response
to the motion seeking to strike this particular evidence. By
failing to respond, plaintiff waived his opportunity to
contest defendants' request to strike this evidence.
See D. Kan. Rule 7.4(b) (“Absent a showing of
excusable neglect, a party or attorney who fails to file a
responsive brief or memorandum . . . waives the right to
later file such brief or memorandum.”). His failure to
respond also allows the court to treat the motion as an
uncontested one, and “[o]rdinarily . . . [to] grant the
motion without further notice.” Id. For this
reason and others, the court excludes Exhibit 155.
court also excludes Exhibit 155 because it violates the best
evidence rule and it is inadmissible hearsay. Exhibit 155 is
not the original emails between plaintiff and Mr. Weinand.
Plaintiff testified that he had not produced the original
emails, but instead had copied and pasted the emails into a
Microsoft Word document. Plaintiff's copy-and-paste
document is not the best evidence, and thus is inadmissible.
See United States v. Jackson, 488 F.Supp.2d 866, 871
(D. Neb. 2007) (holding that a “cut-and-paste
document” was not an accurate original or duplicate
because it did not reflect the entire conversation and thus
was inadmissible because it was not the best evidence (citing
Fed.R.Evid. 1001-04)). Exhibit 155 also contains inadmissible
hearsay. Plaintiff offers the out-of-court statements of Mr.
Weinand to prove the truth of the matter asserted-that the
article is false. He identifies no hearsay exception that
could apply here. The statements thus are inadmissible
hearsay, and the court excludes Exhibit 155 for this
for the reasons explained, the court grants in part and
denies in part defendants' motions to strike. The court
declines to strike Ms. Taylor's Affidavit in its
entirety, but strikes paragraphs 13 and 14 because they
contain inadmissible hearsay. The court strikes the three
other types of summary judgment materials described above
because: (1) the material is not authenticated; (2) the
material contains inadmissible hearsay; or (3) the material
is not the best evidence.
court notes that even if it could consider this material, the
summary judgment record still would present no genuine issues
of fact requiring a trial. Plaintiff uses this material to
support two elements of his defamation claim-the falsity of
the statements and the injury to plaintiff's reputation.
As explained below, even if the court could consider the
material, none of it would present a genuine issue of fact
entitling plaintiff to a jury determination whether the
article damaged plaintiff's reputation. The material also
fails to present evidence of extreme or outrageous conduct
sufficient to support a claim for intentional infliction of
emotional distress. The court thus would enter summary
judgment against plaintiff's two claims even if it
considered all the material it has decided to strike.
Defendants' Summary Judgment Motions
court now turns to the substance of defendants' summary
judgment motions. Each defendant has filed its own summary
judgment motion. Docs. 31, 33. Both motions assert that
plaintiff's defamation and intentional infliction of
emotional distress claims fail as a matter of law. The court
agrees. It considers defendants' motions together, below,
and explains the rationale for its decision to enter summary
following facts are either stipulated facts from the Pretrial
Order (Doc. 29), uncontroverted, or, where controverted,
stated in the light most favorable to plaintiff, the party
opposing summary judgment. Scott v. Harris, 550 U.S.
372, 378 (2007).
Inc. Publishes an Online Article About Hillcrest Country
29, 2014, defendant Time Inc. published an article on its
GOLF.com website titled “Once given up for
dead, the challenging Donald Ross-designed Hillcrest Country
Club is thriving again.” The article chronicles the
recent history of Hillcrest Country Club-Kansas City's
second-oldest private golf club. The article explains that
the club's golf course was designed by renowned golf
course architect Donald Ross. And, the article describes how
Hillcrest Country Club went from enjoying a reputation among
professional golfers as a challenging Ross course into
Chapter 11 bankruptcy, and on to its recent resurgence.
Garrity, a Sports Illustrated senior writer and
Kansas City resident, authored the article. Mr. Garrity
“make[s] one thing clear” at the beginning of his
article, explaining that he “love[s] Hillcrest because
it was [his] summer playground when [he] was a teenager. [He]
played junior golf there, splashed in the pool, gorged on the
Friday-night seafood buffet, caddied on weekends and
stretched out on the grassy slope below the 1st tee to watch
fireworks on the Fourth of July.” Doc. 32-1 at 2-3. Mr.
Garrity describes the memories that Hillcrest Country Club
invokes for him: “Walking through the sprawling stone
clubhouse, I encounter the ghosts of my chain-smoking,
loquacious dad, who served a term as club president, and my
older brother, Tom, who held the course record, dominated the
region's amateur ranks and represented Hillcrest during a
brief run on the PGA Tour.” Id. at 3.
Mr. Garrity employs hyperbole throughout his article,
• “Fortunately, Hillcrest's death rattle
turned out to be more of a smoker's cough.”
Id. at 2.
• “Cherchez la femme!” Id. at 3.
• “When the smoke cleared . . . .”
• “The most pressing concern, of course, is to get
Donald Ross to stop spinning in his grave.”
• “I-and a couple of clubhouse ghosts-happen to
agree.” Id. at 4.
article describes how Hillcrest Country Club was running
significant deficits when David Francis purchased it in 2006.
And, it explains one of the challenges facing Hillcrest
Country Club is “the real estate market correction that
has forced the closing of more than 600 courses across the
U.S. in the past eight years.” Id. at 3. Mr.
Francis attempted to “right the ship” by
“turn[ing] Hillcrest's management over to a
business partner who had impressed him on another
project.” Id. But, the article says that the
business partner went on a “management rampage”
that drove members away from the club. Id.
article repeatedly refers to the former General Manager of
Hillcrest Country Club, but it never uses his name. Instead,
the article uses the pseudonym, “Vlad the
Impaler.” The article's references to “Vlad
the Impaler” are references to plaintiff, who served as
the General Manager of Hillcrest Country Club from August
2006 until May 10, 2011. Mr. Garrity chose to use this
pseudonym because he believed it “aptly described in a
rhetorical sense” plaintiffs management style
“which resulted in him ‘killing off the
membership.” Doc. 34-1 at 18. Mr. Garrity did not use
plaintiffs actual name in the article for two reasons: (1)
the article was written for a national audience, who would
not know the former General Manager, and (2) the article was
not about the club's former General Manager, but about
article includes examples about how “Vlad” drove
away members with his conduct. Doc. 32-1 at 3. Of these
examples, Mr. Garrity's “favorite” anecdote
was this one: “Vlad told the chef to stop ordering
Heinz ketchup as a rebuke to Democratic presidential
candidate John Kerry.” Id. The article also
states that “Vlad even had an answer for those who quit
Hillcrest: He sued them for breach of contract.”
article also describes how the former General Manager failed
to maintain the golf course. The article quotes the
then-current General Manager as saying, “‘[Vlad]
thought that if you didn't overseed, you didn't have
to hire somebody to mow.'” Id. It also
quotes the then-current General Manager as saying:
“‘There was a lot of deferred
maintenance.'” Id. The article criticizes
the former General Manager's decision to replace the
original Donald Ross-designed ninth green with a replacement
green: “Vlad installed a replacement green some 50
yards short of Ross's [which] was tiny, perpetually soggy
and propped up by a stone wall.” Id. Mr.
Garrity explained that, “[i]n less time than it takes
to schedule a deposition, one of Kansas City's strongest
par-4s had been destroyed.” Id. The article
describes how Vlad's actions culminated: “Fed up,
[David] Francis fired Vlad, touching off an exchange of suits
and counterclaims that entertained court reporters and
baffled readers of The Kansas City Star.” Id.
And, “when the smoke cleared, Hillcrest was broke,
depopulated and sparsely staffed.” Id.
Made in the Article by Heartland Golf
article quotes two representatives of Heartland Golf-Davis
Francis and Kurt Everett. The statements made by these two
individuals include the following:
• “‘They were going to board this place
[Hillcrest] up when I bought it, ' Francis says,
indulging in some hyperbole. ‘It was overstaffed.
They'd send several waiters just to pour tea in the
women's card room.'” Id.
• “‘Club presidents' widows used to get
a free social membership, ' says Kurt Everett,
Hillcrest's general manager. ‘That was nothing but
goodwill, and they came in every Friday and Saturday night
and spent money. But he took that away. Anything the members
liked, he took away.'” Id.
• “‘ There was a lot of deferred
maintenance, ' says Everett. ‘ [Vlad] thought if
you didn't overseed, you didn't have to hire somebody
to mow.'” Id.
• “‘I came out here one day, and the green
was being torn up, ' Francis says, shuddering at the
memory. ‘I said, “What are you
• “‘I take full responsibility, '
[Francis] says. ‘I could have stepped in
• “‘I felt I needed to correct the
situation, ' [Francis] says. ‘What happened here
was not representative of my family or my
• “‘We've overdelivered on every promise
we've made, ' says Francis, happy to be wearing the
white hat again.” Id.
• “‘There's so much passion for this
golf course, ' says Everett. ‘It's a thinking
man's golf course. It's a gem. And it's worth
Garrity's Research for the Article
Garrity is a professional sports writer. For more than 30
years, he was a Special Contributor for Sports
Illustrated. Although he retired from the publication in
2010, he continues to write articles as a senior writer. To
write the article that is the subject of this litigation, Mr.
Garrity relied on his firsthand knowledge about Hillcrest
Country Club as well as many interviews with the club's
then-current management, current and former employees, and
current and former members. Mr. Garrity also conducted
independent research for the article. He reviewed publically
available information about other country clubs' finances
and operations and published reports about Hillcrest Country
Club. Mr. Garrity never learned any information that made him
doubt any of the statements written in the article. To the
contrary, Mr. Garrity believed when he wrote the article-and
still believes today-that the statements in the article are
Country Club did not pay Mr. Garrity or provide him with any
other consideration for writing the article. The only
compensation that Mr. Garrity received was his standard