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Clark v. Time Inc.

United States District Court, D. Kansas

March 16, 2017

TERRY J. CLARK, Plaintiff,



         Hyperbole 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.”[1] 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[2] 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.

         This 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 website that criticized the former General Manager of the Hillcrest Country Club in Kansas City, Missouri, by referring to him as Vlad the Impaler.[3] 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.

         This 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.

         Before 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.

         I. 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 56.1(f) provides:

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.

         Defendants 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.

         Plaintiff 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.

         Magistrate 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.[4] 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.

         So, as 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 motion.”

         To be 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.

         Plaintiff's 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”).

         Plaintiff 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.[5]

         On this 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.

         II. Defendants' Motions to Strike

          The 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.

         First, 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 Cir. 1999)).

         These 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.

         Plaintiff 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 judgment.

         Nevertheless, 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.[6] The court does exclude, however, paragraphs 13 and 14 of Ms. Taylor's Affidavit because they contain inadmissible hearsay statements.

         The 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 excludes them.

         Defendants 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.

         The 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.

         The 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.[7] Plaintiff offers no hearsay exception that could apply to these statements. And, without such exception, the statements are inadmissible at trial.[8] The court thus cannot consider these statements on summary judgment.

         Finally, 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.

         The 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 additional reason.

         In sum, 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.

         The 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[9]-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.

         III. Defendants' Summary Judgment Motions

         The 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 judgment.

         A. Uncontroverted Facts

         The 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).

         Time Inc. Publishes an Online Article About Hillcrest Country Club

          On May 29, 2014, defendant Time Inc. published an article on its 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.[10] 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.

         John 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, including:
• “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 . . . .” Id.
• “The most pressing concern, of course, is to get Donald Ross to stop spinning in his grave.” Id.
• “I-and a couple of clubhouse ghosts-happen to agree.” Id. at 4.

         The 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.

         The 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 the club.

         The 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.” Id.

         The 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.

         Statements Made in the Article by Heartland Golf

         The 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 doing?”'” Id.
• “‘I take full responsibility, ' [Francis] says. ‘I could have stepped in sooner.'” Id.
• “‘I felt I needed to correct the situation, ' [Francis] says. ‘What happened here was not representative of my family or my integrity.'” Id.
• “‘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 saving.'” Id.

         John Garrity's Research for the Article

          Mr. 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 true.

         Hillcrest 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 ...

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