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Araya v. Deep Dive Media, LLC

United States District Court, W.D. North Carolina

August 20, 2013


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[Copyrighted Material Omitted]

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For Francis Araya, Plaintiff: Christopher D. Mauriello, LEAD ATTORNEY, Mauriello Law Office, Cornelius, NC.

For Gawker Media, LLC, Defendant: Cameron Stracher, LEAD ATTORNEY, PRO HAC VICE, Gawker Media, New York, NY; Alice Carmichael Richey, Alice Carmichael Richey PLLC, Charlotte, NC.


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Richard L. Voorhees, United States District Judge.

THIS MATTER is before the court on a Motion to Dismiss by Defendant Gawker Media, LLC (" Gawker" ), filed on November 8, 2012, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, asserting failure to state a claim for which relief can be granted. (Doc. 6). This motion was supported by Defendant Gawker's Memorandum of Law in Support of Motion to Dismiss. (Doc. 7). Plaintiff filed a timely response on November 20, 2012. (Doc. 8). Defendant Gawker filed a timely reply on November 27, 2012. (Doc. 9).

Defendant Gawker's motion, as well as the parties' briefs, will be considered in reviewing the sufficiency of the complaint.

I. Factual and Procedural History

Francis Araya (" Plaintiff" ), a recent teenage graduate of Lake Norman High School in Iredell County, North Carolina, prays for reimbursement for personal injuries and damages as a result of Defendant Gawker's allegedly libelous speech; punitive damages resulting from the same; costs; attorney's fees; and a trial by jury. Plaintiff's complaint alleges (1) libel per se, (2) libel per quod in the alternative to libel per se, (3) libel susceptible to two interpretations in the alternative of libel per quod, and (4) negligent infliction of emotional distress. (Doc. 1-1 at 12--15).

Plaintiff's causes of action arise from the following facts, as alleged in her complaint. See generally id. On or around May 25, 2012, Defendants Deep Dive Media, LLC and Gawker published separate news stories on their internet news websites showing a cropped, altered, and partially censored picture of the Plaintiff allegedly exposing her genitals in her high school yearbook. Because only Defendant Gawker has moved for dismissal, the Court will neither relate nor discuss the facts or law surrounding the Deep Dive article. Instead, all that need be considered are the circumstances of Defendant Gawker's (" Defendant" ) particular piece of journalism.

The headline to Defendant Gawker's story (" the article" ) read " Female High School Student Accused of Flashing Vagina in Yearbook Photo." (Doc. 1-1, Exh. B at 25--27). For the sake of a comprehensive overview of the factual background, the text is reproduced in its entirety below:

On page 14 of the Lake Norman High School yearbook there is a photo of a girl lifting her graduation gown and exposing her hooha.
Or so it would seem: A spokeswoman for the Iredell-Statesville School District in North Carolina left open the possibility that what appeared to be the student's " genitalia" was merely her thighs bunched together.

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But rather than wait for a backlash to maybe ensue, the school thought to speed up the process by texting the families to " warn them" about the photo, and offer refunds. Shockingly, no one cared.
Not ones to let a manufactured moral panic die out unexhausted, the district vowed to investigate, and take action as necessary.
" I can assure the parents of Iredell-Statesville Schools that I take all complaints very seriously, said the district in a statement. " Our administration began investigating as soon as they were made aware of this complaint. Since the investigation is not complete at this point, I hesitate to rush to judgment, but let me be clear, there is accountability in I-SS and if action is required it will be taken."
No word on what exactly that means, but WSOC-TV has already put the possibility of child pornography charges to rest by confirming that the girl in the photo was already 18 at the time.
So the sicko families who opted to hold on to the crotchbooks can rest easy in the knowledge that, as sexually depraved as they may be, at least they are not a bunch of degenerate upskirting pedophiles.

Id. at 25--26. Prominently displayed above the article was a still photograph captured from the WSOC-TV (a Charlotte, North Carolina-based ABC affiliate) news footage of the controversy, in which the Plaintiff appeared in her cap and gown--her face and pelvic area, however, had been obscured by black bars. Id. Alongside the text, towards the end of the article, Defendant embedded a video link to the original WSOC-TV news footage. Id.

Plaintiff's complaint alleges that the photograph, as altered, deliberately misconstrued the context of the original scene; that she was sitting, not standing as the pictorial evidence might suggest; that she was with a crowd of over one hundred students and did not pose for the picture, nor was she aware it was being taken at that very moment; that she was holding a ceremony program and not lifting her gown; and that, finally, she was wearing a dress and undergarments beneath her graduation gown. Id. at 8.

Sometime before August 9, 2012, Plaintiff gave notice to Defendant, through her counsel, of her displeasure with the article, pursuant to the requirements of North Carolina General Statute § 99-1. [1] (Doc. 2-1 at 2). In the same notice, Plaintiff asked for a retraction of and apology for the article in question; Defendant declined to acquiesce. Id. In a letter dated August 9, 2012, Plaintiff responded to Defendant and provided timely and ample notice of her intention to file suit, along with her reasoning and expected damages.

Subsequent to the publishing of Defendant's story, Plaintiff maintains that she has been harassed, ridiculed, disgraced, publicly scorned and subjected to outright contempt by her community members. (Doc. 1-1 at 10). Furthermore, she alleges that multiple persons have been able to identify her as being the woman pictured on the website, causing her severe emotional

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distress, extreme humiliation, and irreparable damage to her reputation and dignity. Id. " Strangers have ridiculed her and directed inappropriate and sexually explicit propositions and innuendos to [her]." Id. at 9. As a result, she has sought psychological treatment and counseling for unspecified emotional distresses. Id. at 12.

Due to the aforementioned events and consequences, in addition to Plaintiff's assertion that she was never contacted about the article and that her permission was never requested to publish her photograph, Plaintiff filed the instant action in Iredell County Superior Court on September 20, 2012. (Doc. 1-1). Defendant subsequently removed the action to this Court on the basis of diversity of citizenship jurisdiction and moved to dismiss the claims on November 11, 2012.

II. Standard of Review

A motion filed per the Federal Rule of Civil Procedure 12(b)(6) challenges the legal sufficiency of a complaint, Jordan v. Alternative Res. Corp., 458 F.3d 332, 338 (4th Cir. 2006), measured by whether it meets the standards stated in Rule 8 (providing generals rules of pleading), Rule 9 (providing rules for pleading special matters), Rule 10 (specifying pleading form), Rule 11 (requiring the signing of pleading and stating its significance), and Rule 12(b)(6) (requiring that a complaint state a claim upon which relief can be granted), Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). While a complaint need not contain detailed factual allegations, the courts require more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (applying Rule 8).

" Federal Rules of Civil Procedure 8(a)(2) requires only a 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Id. (quoting Fed.R.Civ.P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). The decisive standard is that the combined allegations, taken as true, must state a " plausible," not merely conceivable, case for relief. Sepú lveda--Villarini v. Dep't of Educ. of P.R., 628 F.3d 25, 29 (1st Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (citations omitted)). To have facial plausibility--a standard that lies between the outer boundaries of a probability requirement and the mere possibility of unlawful conduct--the pleading must contain factual content that permits the court, using its " judicial experience and common sense," reasonably to infer the defendant's liability. Id.

III. Analysis and Discussion

Plaintiff has pleaded four causes of action: (1) libel per se ; (2) libel per quod in the alternative to libel per se ; (3) libel susceptible to two interpretations as an alternative to libel per quod ; and (4) negligent infliction of emotional distress. See (Doc. 1-1).

Defendant has responded with a general denial of all allegations in the complaint, and asserts, specifically, that : (1) " disfavored" causes of action, such as defamation claims, routinely are held to a stricter standard of pleading--a standard which the Plaintiff does not achieve; (2) the article is protected by the First Amendment to the United States Constitution; (3) the article never identifies Plaintiff by name, face, or circumstance, and thus cannot be " of and concerning" her, thus precluding an action for libel per se ; (4) supposing the article is " of and concerning" the Plaintiff, whether specific language or actions are

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capable of a libelous interpretation is a matter of law for the courts to decide and that, in the instant case, Defendant's article was not so capable; (5) Plaintiff's libel per quod claim fails because she does not allege special damages; (6) North Carolina courts do not recognize a third class of libel (libel susceptible to two interpretations), and thus any cause of action resting on such theory must fail; and (7) Plaintiff fails to plead the sufficient elements for a claim of negligent infliction of emotional distress. See generally (Docs. 7 & 9).

Because of the number and complexity of the issues brought up by the Defendant's motion and accompanying briefs, each issue will be examined in turn in the discussion and analysis below.

A. Pleading Standard for Defamation Claims

Defendant boldly alleges that defamation pleadings are held to a higher standard of pleading in the context of 12(b)(6) motions than are other " more favored" causes of action, particularly in the Fourth Circuit. (Doc. 7 at 4--5) (" When a claim is a traditionally disfavored cause of action, such as malicious prosecution, libel, or slander, the courts have tended to construe the complaint by a somewhat stricter standard and have been more inclined to grant a Rule 12(b)(6) motion to dismiss." ) (quoting 5B Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1357 (3d ed. 2012). For support of this proposition, Defendant cites to a number of cases decided by the Fourth Circuit (and inexplicably a number of North Carolina decisions applying State procedural rules) in which libel claims were dismissed on a 12(b)(6) motion. Id. Defendant, however, fails to show just how the particulars of those cases tend to establish the " stricter standard" or just where the distinguishing line of demarcation between the strict standard and an ordinary one should be drawn. Id. The mere recitation of a number of cases that were dismissed at a preliminary stage does not, in itself, create a higher or stricter pleading standard.

To claim so would be to heighten the Plaintiff's pleading standard for virtually all causes of action that have had a number of cases dismissed pursuant to 12(b)(6) motions -- a flimsy watermark to be sure. Instead, the Court agrees with the Middle District of North Carolina's assertion that " the Fourth Circuit has joined with a growing number of courts in concluding that . . . the Federal Rules do not mandate a heightened pleading standard for defamation cases . . . ." Moore v. Cox, 341 F.Supp.2d 570, 575 (M.D.N.C. 2004) (emphasis added).

Therefore, the pleading standards as set forth in Part II of this Order, along with the universally accepted and mandatory authorities of Twombly and Iqbal, adequately and accurately set forth the standard of review to be applied to the sufficiency of Plaintiff's complaint for the purposes of a 12(b)(6) motion to dismiss. See supra Part II; Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 679.

B. First Amendment Protection of the Media

Media outlet reporting on private individuals necessarily implicates a delicate balance between our closely held right of a free press, on the one hand, and the " maint[enance] [of] the reputation and livelihoods of private individuals who are somehow harmed by the dissemination of this information," on the other. Neill Grading & Constr. Co. v. Lingafelt, 168 N.C.App. 36, 606 S.E.2d ...

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