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Rittgers v. Hale

United States District Court, D. Kansas

May 24, 2018

MELVIN HALE, Defendant.


          Sam A. Crow, U.S. District Senior Judge

         Plaintiff has brought a defamation action against defendant which is before the court upon defendant's motion for summary judgment. Defendant's motion (Doc. No. 70) devotes most of its attention to seeking summary judgment against plaintiff's defamation claim. But, defendant's motion also asks for summary judgment in favor of defendant's counterclaim which alleges retaliation by plaintiff against defendant. For the reasons which follow, the motion shall be denied.

         I. Summary judgment standards

         Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED.R.CIV.P. 56(a). Such a showing may be made with citation “to particular parts of materials in the record, including depositions, documents, . . . affidavits or declarations, stipulations . . ., admissions, interrogatory answers, or other materials.” FED.R.CIV.P. 56(c)(1)(A). The court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10thCir. 2002). An issue of fact is “genuine” if “there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). The court may not make credibility determinations when examining the evidentiary record presented by the parties. Fogarty v. Gallegos, 523 F.3d 1147, 1165-66 (10th Cir. 2008).

         “[W]hen . . . the moving party does not have the ultimate burden of persuasion at trial, it has both the initial burden of production on a motion for summary judgment and the burden of establishing that summary judgment is appropriate as a matter of law.” Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir.2002). “The moving party may carry its initial burden either by producing affirmative evidence negating an essential element of the non-moving party's claim, or by showing that the nonmoving party does not have enough evidence to carry its burden of persuasion at trial.” Id. (citation omitted). “Showing” or “pointing out” an absence of evidence may be accomplished by reliance upon depositions, answers to interrogatories and the like. Celotex Corporation v. Catrett, 477 U.S. 317, 328 (1986)(White, J., concurring). But, “[i]t is not enough to move for summary judgment without supporting the motion in any way or with a conclusory assertion that the plaintiff has no evidence to prove his case.” Id.; see also, Coit v. Zavaras, 175 Fed.Appx. 226, 229 (10th Cir. 2006); Eaves v. Fireman's Fund Ins. Companies, 148 Fed.Appx. 696, 700 (10th Cir. 2005); Windon Third Oil & Gas Drilling P'ship v. Fed. Deposit Ins. Corp., 805 F.2d 342, 345 (10th Cir. 1986).

         If the movant carries the initial burden of production, then the nonmovant that bears the burden of persuasion at trial must go beyond the pleadings and set forth specific facts that would be admissible in evidence from which a rational trier of fact could find for the nonmovant. Adler, 144 F.3d at 671. In this case, plaintiff has signed an affidavit (Doc. No. 72-2) verifying the allegations in the first amended complaint and offered an affidavit (Doc. No. 72-1) from another witness. “Evidence is sufficient to withstand summary judgment if it is significantly probative and would enable a trier of fact to find in the nonmovant's favor.” Adams v. American Guarantee and Liability Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000).

         II. Plaintiff's allegations

         Plaintiff alleges that she is an administrative assistant employed at Emporia State University (“ESU”). Doc. No. 58, ¶ 5. Plaintiff claims that she was defamed by defendant when he communicated to the public that plaintiff was the probable author of a racial slur that was found written on a student's notepad in an office at ESU. Doc. No. 72, pp. 5-6. The first amended complaint alleges that defendant and his wife Angelica: “sent one or more press releases to National Public Radio;” and “created a website named March on Emporia . . . along with Facebook and Twitter pages that continued to accuse [plaintiff] as the most probable person to have written the racial slur in the notebook.” Doc. No. 58, ¶¶ 8 and 9. Neither the press releases nor the website or social media pages have been presented to the court as part of the summary judgment record. III. Defamation standards The parties agree that Kansas law applies here. In Kansas, a valid defamation claim requires proof that: (1) the defendant wrote false and defamatory statements; (2) the defendant communicated these statements to a third party; and (3) the plaintiff's reputation was injured by the statements. El-Ghori v. Grimes, 23 F.Supp.2d 1259, 1269 (D.Kan. 1998); see also In re Rockhill Pain Specialists, P.A., 412 P.3d 1008, 1024 (Kan.App. 2017)(quoting Hall v. Kansas Farm Bureau, 50 P.3d 495 (2002)). “'[D]amage to one's reputation is the essence and gravamen of an action for defamation.'” In re Rockhill Pain Specialists, 412 P.3d at 1024 (quoting Gobin v. Globe Publishing Co., 649 P.2d 1239 (1982)).

“Proof of such damages typically entails showing that persons were deterred from associating with the plaintiff, that the plaintiff's reputation had been lowered in the community, or that the plaintiff's profession suffered.” Ali v. Douglas Cable Communications, 929 F.Supp. 1362, 1385 (D. Kan. 1996). “Damage to reputation can be inferred from the evidence so long as the inference is reasonable.” Sunlight Saunas, Inc. v. Sundance Sauna, Inc., 427 F.Supp.2d 1032, 1072 (D. Kan. 2006) (citing Moran v. State, 267 Kan. 583, 590, 985 P.2d 127');">985 P.2d 127 [1999]). Additionally, “[a] victim's own observations may be suitable as proof of harm to his reputation for defamation cases in Kansas ... but they must raise a reasonable inference that the damage was caused by the plaintiff's statements. [Citation omitted.]” Debord v. Mercy Health System of Kansas, Inc., 860 F.Supp.2d 1263, 1283 (D. Kan. 2012). However, “[b]road and factually unsupported allegations ... do not support a claim for damages for alleged defamation.” Davis v. Hildyard, 34 Kan.App. 2d 22, 30, 113 P.3d 827 (2005).

         Id. at 1024-25.

         IV. Analysis of defendant's arguments for summary judgment against plaintiff's defamation claim.

         Defendant's motion makes numerous arguments. Defendant's first argument is that plaintiff “refers to statements that are true involving a matter of public concern.” Doc. No. 71, p. 13. The court will address the “truth” argument in this part of the order and address any constitutional privilege claim later in the order. The summary judgment record before the court is not comprehensive and does not preclude a genuine issue as to the truth of the statement that plaintiff was the probable author of the racial slur. Defendant supports his position with evidence of a statement by a handwriting analyst, Wendy Carlson. Plaintiff has sworn that she did not write the racial slur or have any involvement in it. Doc. No. 58, ¶ 16. And the handwriting analyst has stated that she was not given sufficient information to provide a conclusive expert opinion. Doc. No. 72-1, ¶ 4. The court concludes that plaintiff has presented sufficient material to demonstrate a genuine issue of fact as to the truth or falsity of defendant's alleged defamatory statements.[1]

         Defendant's second argument is that plaintiff “fails to state with any specificity what [defendant] said or published that was false.” Doc. No. 71, p. 13. The first amended complaint (Doc. No. 58, pp. 2-3), the final pretrial order (Doc. No. 68, pp. 6-9) and plaintiff's response to the summary judgment motion (Doc. No. 72, pp. 4-6) are documents where plaintiff states she was defamed by statements that she was the probable author of a racial slur found on a notepad at ES U.She further indicates that “the Hales” (defendant and his wife) made the statements on a website and in social media. Plaintiff also states that defendant and his wife “sent one or more press releases to National Public Radio.” Doc. No. 68, p. 7. It is not clear to the court whether plaintiff is alleging that the defamatory statement was made in the press releases. But, that does not appear to be the issue defendant is raising. Upon review, the court concludes that although plaintiff could have been more specific, sufficient information has been provided to give defendant fair notice of plaintiff's claim. Therefore, the court rejects defendant's second argument for summary judgment.

         Defendant's third argument is that plaintiff has offered “no proof or evidence to support her claim.” Doc. No. 71, p. 13. This argument is repeated more frequently and vigorously in defendant's reply brief where defendant makes additional factual assertions (often without citation to the record) denying relevant facts. Contrary to defendant's argument, plaintiff has sworn to the facts alleged in the complaint. This qualifies as an offer of proof for the purposes of a summary judgment motion. See Green v. Branson, 108 F.3d 1296, 1302 (10th Cir. 1997); Long v. Morris, 485 F.Supp.2d 1247, 1249 (D.Kan. 2007). Plaintiff has also provided an affidavit from the handwriting analyst. As stated in section I of this order, defendant does not satisfy his initial burden of production by merely asserting that plaintiff has no ...

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