United States District Court, D. Kansas
MEMORANDUM AND ORDER
CROW, U.S. DISTRICT SENIOR JUDGE
court has stated that this case would be dismissed pursuant
to defendants' motion to dismiss the original complaint
unless plaintiff filed an amended complaint which stated a
claim upon which relief may be granted. See Doc. No. 29.
Plaintiff has filed a 220-page amended complaint (Doc. No.
36) which the court has construed as a proposed amended
complaint and a motion for leave to proceed upon the amended
complaint. Defendants oppose the motion. Doc. No. 38.
Plaintiff has filed a reply to defendants' opposition.
Doc. No. 45.
proposed amended complaint adds a claim for outrage. Other
than that, the proposed amended complaint is similar to
plaintiff's original complaint and reads something like a
motion for reconsideration. The court has carefully
considered the proposed amended complaint and for the reasons
stated below finds that it fails to state a claim for relief.
The court may refer to the order ruling on defendants'
motion to dismiss the original complaint or include portions
of that opinion in this order.
15(a) provides that leave to amend a complaint shall be given
freely when justice so requires. A district court, however,
may deny leave to amend where the amendment would be futile.
Jefferson County Sch. District v. Moody's
Investor's Servs., Inc., 175 F.3d 848, 859
(10th Cir. 1999). If a proposed amended complaint
fails to state a claim or is subject to dismissal for another
reason, then the motion to amend is futile. See Fields v.
City of Tulsa, 753 F.3d 1000, 1012 (10th Cir.
2014). The court incorporates the standards for determining
whether a complaint fails to state a claim as set out in Doc.
No. 29 at pp. 7-8.
plaintiff proceeds pro se, we liberally construe his
pleadings, but we will not act as his advocate. James v.
Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
Nor will we excuse him from adhering to the same procedural
rules as other litigants. Garrett v. Selby Connor Maddux
& Janer, 425 F.3d 836, 840 (10th Cir.
PROPOSED AMENDED COMPLAINT
proposed amended complaint describes plaintiff as follows:
The Plaintiff William (Billy) Yeager is a
multi-instrumentalist and songwriter, who has been discovered
several times by people such as Chuck Gregory (Columbia
Records), Grammy Award Winner Bruce Hornsby, and Bon Jovi and
Kiss manager Doc McGhee. Billy Yeager has written and
recorded over 2600 musical compositions. In his early
20's he won several National Songwriting contests. In
1983, he produced his first album, What's It Gonna Take.
Over 22 of South Florida's top musicians, such as Dennis
Noday, Rex White, Jay Drake, Allan Layton and Diane Sherrow,
recorded on the album. On his second album Be My Valentine,
produced in 1985, Billy played every instrument. The album
was recorded at Circle Sound Studios, which is the private
recording studio of the Inner Circle Reggae Band. Yeager was
the guitar player for the Grammy Award winning band Inner
Circle from 1985-1986. “Touter” Harvey and Ian
Lewis both were involved in the engineering and production of
the Be My Valentine album. Billy has performed and played
alongside musicians such as Doug Ingle from Iron Butterfly,
Gerry Morotta from Peter Gabriel, Carmine Appice from Vanilla
Fudge, Butch Trucks from Allman Brothers, and Pat Travers. In
1987 Yeager recorded with Ira Sullivan, Eddie Higgins, and
“Mars” Cowling on Stan Jeff Brown's album
Transformation Paradox. Yeager also recorded with Jaco
Pastorius who considered Billy one of the greatest guitarists
he ever performed with. In the 90s Plaintiff shifted his
attention to making films. His first film Jimmy's Story
which he filmed for over 23 years, took him several years to
edit and was funded by the Cultural Development Group in
Miami (Founder, Aaron Morris); the film won 4 awards at the
DIFF and Best First Feature at the Palm Beach International
Film Festival. Plaintiff has produced, directed and acted in
4 more feature films; A Perfect Song which won him
“Best Actor" Award at the Delray Beach Film
Festival; The Florida Highwaymen, the story about the famous
folk artists who have been featured on PBS and have 12 books
published about their story; the film trilogy Jesus of Malibu
that took 8 years to complete; and the documentary Sebastian
Beach One Fine Day, which Premiered at the NYC Surf Film
Festival; there are 2 documentary films produced about the
Plaintiff: The Film That Changed The World, which tells the
story about Yeager and his wife's desire and mission
“to change the world for the betterment of humanity,
” which won "Most Inspirational Movie Award"
at the Red Dirt International Film Festival, and Billy Yeager
The Ineffable Enigma which tells the story of the
Plaintiff's artistic career and mission, as a musician,
filmmaker, activist and humanitarian.
Doc. No. 36, ¶ 70.
National Public Radio (NPR) published an article about
plaintiff on March 23, 2017 and broadcast an interview which
concerned plaintiff on March 24, 2017. Defendant Andrew
Flanagan wrote the article and he and defendant Jacob Ganz
participated in the interview. Defendant Ashley Messenger is
an attorney for NPR.
March 23rd article was titled “The Most
Expensive Record Never Sold - Discogs, Billy Yeager and the
$18, 000 Hoax That Almost Was.” The article describes
how a test pressing of plaintiff's album titled
“Billy Yeager 301 Jackson St.” was auctioned for
$18, 000.00 on a resale website - “Discogs” -
which is popular with record collectors. This broke the
record of $15, 000.00 bid for a rare Prince album. Flanagan
wrote that this record-breaking sale “seems to have
been a fiction woven by the record's creator” and
that the website canceled the transaction. In other words,
according to the article plaintiff appeared to bid $18,
000.00 for his own record. This is what the article referred
to as the “hoax that almost was.”
March 24, 2017, Audie Cornish of NPR interviewed defendants
Flanagan and Ganz regarding a few pieces of music news.
During the interview she questioned them about Flanagan's
“reporting” regarding Yeager and the sale of
“Billy Yeager ephemera.” Doc. No. 13-2, p. 21.
Flanagan explained that his report started with an email from
Discogs about the record for the most expensive album sold on
the site. Flanagan referred to Yeager as “a complete
unknown” who sold the album on Discogs to himself to
“get this strange type of publicity that he's been
seeking his entire life.” Id. at p. 22. Ganz
“This guy, as good as he might possibly be, is far more
interested in infamy than he is in fame and the chase of
pulling the wool over people's eyes. He's a huckster.
He's a charlatan. The fact that you can do that on the
Internet as well as you can anywhere else is just sort of
like part of the long story of people in the music industry
doing crazy things I think.”
states in the amended complaint that, before the NPR article
and interview, he:
was known as a talented musician and songwriter who had
written and recorded songs; as a filmmaker who had produced,
directed and acted in award winning independent films; as
someone that doesn't compromise his high ideals and
values trying to fit in; as someone who had rejected the
vanities and the corruption of the mainstream music and film
industries; as a seeker of truth; as having relinquished a
comfortable life and given away material possessions to set
off on a serious spiritual quest with his wife, to try to
create artwork that helps to raise conscious awareness in
humanity and inspires people to seek truth and become truth;
as someone that has been involved with charities since 1985
(World Vision, prison ministry, caregiver, feeding the
homeless, church prayer leader); as a bold and courageous
artist, one with righteous anger about the injustice in the
world, willing to challenge other artists and also raise
money to help those who cannot help themselves, etc.
Doc. No. 36, ¶ 88.
alleges that the article and the interview contain many
defamatory statements. He alleges that he and his wife
communicated several times with Ashley Messenger, seeking
without success for defendants to issue a retraction and to
have the article and interview removed from NPR's
contends that his efforts to raise money with benefit
concerts staged at a refurbished missile silo in Kansas were
sabotaged by the article and interview. Id. at
¶¶ 341-349. Plaintiff states that the ticket price
($7, 500.00) “was to be marketed to the
‘well-to-do' upper middle-class people who are very
supportive in the arts and are philanthropists interested in
helping others.” Id. at ¶ 343. The money
raised was to be used to buy wheelchairs for land mine
victims. He further contends that he was thrust into a deep
addition to defamation, plaintiff asserts that defendants are
liable for slander, false light invasion of privacy and
DEFAMATION, SLANDER AND FALSE LIGHT STANDARDS
alleges defamation, slander and false light invasion of
privacy. Kansas law and federal constitutional law apply
here. In Kansas, the tort of defamation includes both libel
and slander. Dominguez v. Davidson, 974 P.2d 112,
117 (Kan. 1999)(quoting Lindemuth v. Goodyear Tire &
Rubber Co., 864 P.2d 744, 750 (Kan.App. 1993)). A valid
defamation claim requires proof of: (1) 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 (Kan. 2002)). “A statement is defamatory if
it diminishes the esteem, respect, goodwill or confidence in
which the plaintiff is held or excites adverse, derogatory or
unpleasant feelings or opinions against him. A defamatory
statement necessarily involves the idea of disgrace.”
Clark v. Time Inc., 242 F.Supp.3d 1194, 1217 (D.Kan.
2017)(interior quotations omitted).
light privacy action requires that publicity be given to
someone which places that person before the public in a false
light of a kind highly offensive to a reasonable
person. Hunter v. The Buckle, Inc., 488
F.Supp.2d 1157, 1179 (D.Kan. 2007)(citing Rinsley v.
Frydman, 559 P.2d 334, 339 (Kan. 1977)). The standards
and defenses which apply to a defamation claim also apply to
a “false light” claim. See Rinsley v.
Brandt, 700 F.2d 1304, 1307 (10th Cir. 1983)(applying
same defenses to both causes of action); Stead v. U.S.D.
No. 259, 92 F.Supp.3d 1088, 1109 (D.Kan. 2015)(the two
claims are generally treated the same way); Castleberry
v. Boeing Co., 880 F.Supp. 1435, 1442 (D.Kan.
1995)(courts treat the two claims similarly); Restatement
(Second) of Torts § 652E (1977)(comment e)(it is
arguable that limitations placed on defamation should apply
to false light claims).
statements and statements of opinion are protected by the
First Amendment as long as they do not present or imply the
existence of defamatory facts which are capable of being
proven true or false. Milkovich v. Lorain Journal
Co., 497 U.S. 1, 18-19 (1990); Pan Am Systems Inc.
v. Atlantic Northeast Rails and Ports, Inc., 804 F.3d
59, 65 (1st Cir. 2015). This is a question to be
determined by the court. Robinson v. Wichita State
University, 2017 WL 2378332 *4 (D.Kan. 5/31/2017);
D'Souza-Klamath v. Cloud Cty. Health Ctr., Inc.,
2009 WL 902377 *10 (D.Kan. 3/31/2009). “[T]he defense
available in a defamation action that the allegedly
defamatory statements are opinions, not assertions of fact,
is also available in a false light privacy action.”
Rinsley, 700 F.2d at 1307; see also,
Robinson, 2017 WL 2378332 at *7.
language that is subject to multiple interpretations is
generally not actionable. See Montgomery v. Risen,
875 F.3d 709, 713 (D.C. 2017)(characterization of software
sold to the government as a “hoax” is too
“loose, figurative or hyperbolic” to be
considered defamatory); Hogan v. Winder, 762 F.3d
1096, 1107(10th Cir. 2014)(“performance
issues” & “erratic behavior” - too
vague and nonspecific to be defamatory); Gray v. St.
Martin's Press, Inc., 221 F.3d 243, 249
(1st Cir. 2000)(what is success or failure in the
situation of a public communications firm is very much a
matter of opinion); Phantom Touring, Inc. v. Affiliated
Publi'ns, 953 F.2d 724, 728 (1st Cir.
1992)(description of a musical comedy version of
“Phantom” as “a rip-off, a fraud, a
scandal, a snake-oil job” is too subjective to be
proven true or false, even the charge of “blatantly
misleading the public” is subjective and imprecise);
Levinsky's, Inc. v. Wal-Mart Stores, Inc., 127
F.3d 122, 129-30 (1st Cir.
1997)(“trashy” is subjective and cannot be
verified); Dilworth v. Dudley, 75 F.3d 307, 310
(7th Cir. 1996)(“scam” may be
nondefamatory hyperbole rather than a false assertion of fact
depending on context); McCabe v. Rattiner, 814 F.2d
839, 842 (1st Cir. 1987)(the word “scam,
” used in an article regarding a timeshare sales
program, is incapable of being proven true or false);
Nunes v. Rushton, 299 F.Supp.3d 1216, 1231-32
(D.Utah 2018)(“scam” and “hoax” used
as opinionated rhetorical hyperbole and therefore, not
defamatory); Robinson v. Wichita State University,
2018 WL 836294 *12 (D.Kan. 2/13/2018)(“too
bureaucratic” is subjective and nondefamatory);
Ayyadurai v. Floor64, Inc., 270 F.Supp.3d 343,
361-62 (D.Mass. 2017)(“charlatan” used in a loose
figurative manner cannot be defamatory); Robinson,
2017 WL 2378332 at *4 (“too hierarchal” and
“too punishment-centered” are subjective and
nondefamatory); D.Kan. 5/31/2017); Clark, 242
F.Supp.3d at 1219 (“disturbing” management style
is subjective and nondefamatory); McKee v. Cosby,
236 F.Supp.3d 427, 445 (D.Mass.) aff'd, 874 F.3d
54 (1st Cir. 2017)(“The judgment of an
individual's credibility is not an objective fact capable
of being proven true or false”); Paterson v.
Little, Brown & Co., 502 F.Supp.2d 1124, 1135
(W.D.Wash. 2007)(“ripoff” is imprecise and
incapable of defamatory meaning); Metcalf v. KFOR-TV,
Inc., 828 F.Supp. 1515, 1530 (W.D.Okla. 1992)(statement
that a medical organization was a “sham”
perpetrated by “greedy doctors” is a matter of
opinion); NBC Subsidiary (KCNC-TV), Inc. v. Living Will
Center, 879 P.2d 6, 11 (Colo. 1994)(en banc)(statement
that a product is a “scam” as a statement of its
value is not a defamatory statement).
cannot arise where the speaker communicates the nondefamatory
facts that undergird his opinion. Piccone vs.
Bartels, 785 F.3d 766, 771 (1st Cir. 2015);
Ross v. Rothstein, 2014 WL 1385128 *8 (D.Kan.
4/9/2014). Even if an expression of opinion may have been
skewed by a vindictive motive, if it is “‘based
on disclosed or assumed nondefamatory facts [then it] is not
itself sufficient for an action of defamation, no matter how
unjustified or unreasonable the opinion may be or how
derogatory it is.'” Piccone, 785 F.3d at
774 (quoting Yohe v. Nugent, 321 F.3d 35, 42 (1st
Cir. 2003))). “[E]ven a provably false statement is not
actionable if it is plain the speaker is expressing a
subjective view, an interpretation, a theory, conjecture, or
surmise, rather than claiming to be in possession of
objectively verifiable facts.” Riley v. Harr,
292 F.3d 282, 289 (1st Cir. 2002)(interior
quotation omitted). If defendants fully disclosed ...