United States District Court, M.D. Georgia, Valdosta Division
RICHARD E. BELL, JR., KAREN K. BELL, BRANDEN R. BELL, and BRIAN E. BELL, Plaintiffs,
JOHNSON PUBLISHING COMPANY, LLC, a/k/a JOHNSON PUBLISHING COMPANY, INC., Defendant.
LAWSON, SENIOR JUDGE.
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.
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"),  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.
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.
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.).
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.
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. §
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.
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.
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).
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.).
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).
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
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).
"Of and ...