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Bell v. Johnson Publishing Co., LLC

United States District Court, M.D. Georgia, Valdosta Division

January 10, 2018

RICHARD E. BELL, JR., KAREN K. BELL, BRANDEN R. BELL, and BRIAN E. BELL, Plaintiffs,
v.
JOHNSON PUBLISHING COMPANY, LLC, a/k/a JOHNSON PUBLISHING COMPANY, INC., Defendant.

          ORDER

          HUGH LAWSON, SENIOR JUDGE.

         Before the Court is Defendant Johnson Publishing Company, LLC's Motion for Partial Judgment on the Pleadings (Doc. 34). Defendant moves the Court to dismiss the defamation claims of Plaintiffs Richard E. Bell, Jr. and Karen K. Bell (the "Bell Parents"). Defendant additionally moves to dismiss Plaintiffs' collective claim for punitive damages, alleging that Plaintiffs failed to follow the statutory requirements set forth in Georgia's retraction statute and thus are not entitled to the recovery of punitive damages. Upon review of the pleadings, and with the benefit of oral argument, the Court GRANTS IN PART AND DENIES IN PART Defendant's motion. Also before the Court is Plaintiffs' Motion for Leave to Amend Amended Complaint (Doc. 43). For the following reasons, Plaintiffs' motion is DENIED.

         I. BACKGROUND

         Around 1:30 p.m. on January 10, 2013, the body of Kendrick Johnson ("KJ"), a Sophomore at Lowndes County High School ("LCHS") in Valdosta, Georgia, was discovered in a standing gym mat in the school's old gym. Speculation abounded about how KJ came to be in the rolled-up mat, and media outlets began probing the developing story. Between August 12, 2013 and April 9, 2014, Defendant Johnson Publishing Company, LLC ("Johnson Publishing"), published a series of fifteen articles on their website Ebony.com pertaining to KJ's death and the ensuing investigation (the "KJ Articles" or "Articles"). Frederick A. Rosen ("Rosen"), [1] a writer known for his "true crime" publications, authored the majority of the articles. The initial five articles, published between August 12, 2013 and September 23, 2013, were entitled "Who Killed Kendrick Johnson." In these first articles, Rosen questions the integrity of the investigation into the cause of KJ's death, suggesting that KJ was murdered under suspicious circumstances and not the victim of an unfortunate accident as claimed by local law enforcement.

         On September 4, 2013, Rosen first reports about a student by the name of "Sean Marshal, " who allegedly was involved in an altercation with KJ on a school bus traveling to an away football game several months prior to KJ's death. (Doc. 31-1, p. 23). Sean Marshal is a pseudonym that Rosen later changed to "Clark Martin" in his October 25, 2013 article "Did a Fight Lead to Kendrick Johnson's Murder?" (Id. at p. 36). The article describes Clark Martin as a white male who was a Senior at LCHS. (Id. at p. 36). According to the article, detectives following up on the story about the altercation between KJ and Clark Martin contacted "Sam Martin, " Clark's father, and requested an interview:

When Adams did, the father, Sam Martin, referred him to his attorney, who would not permit any interviews at that time. However, two weeks later on January 31, Det. John Marion followed up and contacted one of Martin's parents and was able to go to their house and speak to the teen.

(Id.). Clark reportedly told the investigators during this meeting that he did not know KJ and that on the day of KJ's death he was in the weight room and not in the old gym. (Id. at p. 37). The Martins' younger son Chris, a Sophomore at LCHS, was present during the interview of Clark. (Id.). The detectives sought and obtained permission from the parents, Sam and Susan Martin, to speak with Chris as well. (Id.). Chris told the detectives that he had observed both KJ and other students throwing their shoes over the gym mats, which they would retrieve the next day to play basketball, (Id.). On March 21, 2013, the Lowndes County Sheriff's Department ("LCSO") contacted the Martin's attorney about Clark and Chris Martin providing a formal statement to police. (Id.). The attorney, after consulting with Sam Martin, informed the LCSO that the two young men would not be meeting with investigators. (Id.).

         In this same article, Rosen reports that in April 2013, investigators interviewed another student who stated that it was Chris and not Clark Martin who got into a fight with KJ on the school bus. (Id. at p. 38). Chevene King, an attorney of KJ's parents, also purportedly stated during a radio interview that following the altercation Sam Martin invited KJ to his home for a rematch. (Id.).

         While the alleged fight between KJ and Chris Martin remained as a central feature in Rosen's investigation into what led to KJ's death, any further mention of the Martin parents in the remaining articles is sparse. Rosen recaps the majority of the events described in his October 25 article in his November 19, 2013 article "Tweets from Possible Suspects Raise Eyebrows" (the "Tweets" article). (Id. at p. 40-44). However, in this article Rosen also notes that Beau Webster, a private investigator hired by KJ's family, specifically identified Clark and Chris Martin as possible suspects for the murder of KJ. (Id. at p. 41). According to the article, Webster additionally identified other alleged suspects and stated that they were under investigation by the Federal Bureau of Investigation. (Id.). Webster apparently also discovered that Chris Martin and KJ fought a second time. (Id.). This discovery is what led investigators to approach Sam Martin for permission to interview Chris. (Id.). Rosen then states, "We have been able to confirm that the elder Martin is an FBI agent. He refused to have his son interviewed by the sheriff's detectives, instead referring them to his attorney." (Id. at 41-42). The "Tweets" article goes into more detail about what transpired during the investigator's January 31, 2013 meeting with the Martin family, again stating that the detectives obtained permission from either Sam or Susan Martin to speak with the boys. (Id. p. 42). However, neither the "Tweets" article nor any of Rosen's subsequent submissions to Ebony.com describe any further involvement of Sam or Susan Martin.

         On April 18, 2014, Plaintiffs' counsel sent Johnson Publishing a letter entitled "Demand for Retraction and Payment of Unliquidated Damages." (Doc. 31-2). The letter demands the following pursuant to O.C.G.A. § 51-5-11:

within fourteen (14) days of the receipt of this letter, [Johnson Publishing] issue a written retraction to the national media of the statements you have made that the sons of the FBI agent identified in your articles were involved at all in the death of KJ or any possible cover-up of the death. You must retract any claim that their father, or any member of the Bell family, was part of the alleged cover-up of KJ's murder. If you agree to make a retraction, we will furnish you with a specific retraction statement acceptable to the Bells.

         (Doc. 31-2, p. 11-12). Plaintiffs further demand that Johnson Publishing pay $1.5 million in compensatory damages within thirty (30) days of receiving the letter. (Id. at p. 12).

         Plaintiffs' counsel sent a second letter to Johnson Publishing dated May 19, 2014, entitled "For Settlement and Retraction Purposes Only." (Doc. 31-3). This letter sets forth the retraction notice Plaintiffs required Johnson Publishing issue, to "be released to all U.S. print and broadcast media, as well as web media or others linked to any Johnson web site." (Id. at p. 1). The letter further specifies Plaintiffs' requirement that the retraction notice "be written in Ebony Magazine and posted on the Ebony website for a period of one year so that any person attempting to access any Ebony articles about KJ . . . will see this retraction." (Id. at p. 2). The letter set a deadline of May 21, 2014 for Johnson Publishing to issue the retraction. (Id. at p. 4).

         Johnson Publishing removed the majority of the KJ articles from Ebony.com on May 5, 2014. (Doc. 31, ¶ 26). However, Johnson Publishing refused to publish the written retraction demanded by the Bell Parents. (Id.).

         II. LEGAL STANDARD

         A motion for judgment on the pleadings is properly filed "[a]fter the pleadings are closed[, ] but early enough not to delay trial." Fed.R.Civ.P. 12(c). "Judgment on the pleadings is appropriate when there are no material facts in dispute, and judgment may be rendered by considering the substance of the pleadings and any judicially noticed facts." Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir. 1998) (internal citations omitted); Cunningham v. Dist. Att'y's Office for Escambia Cty., 592 F.3d 1237, 1255 (11th Cir. 2010). In deciding a motion for judgment on the pleadings, the facts in the complaint are accepted as true and viewed in the light most favorable to the nonmoving party. Id. The court may consider documents attached to the pleadings. Horsely v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002).

         A Rule 12(c) motion for judgment on the pleadings is governed by the same standards as a Rule 12(b)(6) motion to dismiss. Strategic Income Fund, LLC v. Spear, Leeds & Kellog Corp., 305 F.3d 1293, 1295 n.8 (11th Cir. 2002) (explaining that the standard for either a Rule 12(b)(6) or Rule 12(c) motion is "whether the count state[s] a claim for relief"). The complaint must contain sufficient factual information to state a claim for relief that is "plausible on its face." Wooten v. Quicken Loans, Inc., 626 F.3d 1187, 1196 (11th Cir. 2010). When the plaintiff provides enough "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged, " the complaint is "plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Labels and conclusions" and a "formulaic recitation of the elements of a cause of action" are insufficient to raise a right to belief above the "speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         III. DISCUSSION

         Defendant argues that it is entitled to judgment on the pleadings because none of the statements contained within any of the KJ Articles that potentially reference the Bell Parents is libelous as a matter of law. Georgia law defines libel as "a false and malicious defamation of another, expressed in print, writing, pictures, or signs, tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule." O.C.G.A. § 51-5-1 (a). "To succeed in a libel action, a plaintiff must prove that the defendant published a defamatory statement about the plaintiff, the defamatory statement was false, the defendant was at fault in publishing it, and the plaintiff suffered actual injury from the statement." Bryant v. Cox Enterprises, Inc., 311 Ga.App. 230, 234 (2011) (quoting Mathis v. Cannon, 276 Ga. 16, 21(2) (2002)) (internal quotation marks omitted).

         A. Libel Claims

         1. "Of and ...


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