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Turner v. Wells

United States Court of Appeals, Eleventh Circuit

January 18, 2018

JAMES L. TURNER, Plaintiff-Appellant,
v.
THEODORE V. WELLS, JR., PAUL, WEISS, RIFKIND, WHARTON & GARRISON, LLP, Defendants-Appellees.

         Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 0:15-cv-61855-DPG

          Before DUBINA and HULL, Circuit Judges and RESTANI, [*] Judge.

          HULL, CIRCUIT JUDGE:

         This appeal involves a law firm's investigation of the Miami Dolphins professional football organization. The National Football League ("NFL") hired the law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP and one of its partners, Theodore Wells, to investigate allegations of bullying within the Dolphins organization. After receiving Paul, Weiss's report, the Dolphins fired their offensive line coach, James Turner, in February 2014.

         Paul, Weiss's investigation centered on the bullying of a football player, Jonathan Martin, who abruptly left the Dolphins team midway through the 2013 season. At the time, Martin was an offensive lineman in his second year with the Dolphins. After leaving a Dolphins facility on October 28, 2013, Martin checked himself into a hospital for psychological treatment. Later, Martin explained that he left the team because of persistent taunting from other Dolphins players.

         After several months of investigation, Paul, Weiss published a 144-page report (the "Report") which concluded that bullying by other Dolphins players contributed to Martin's decision to leave the team. The Report also included several references to Coach Turner and opined that Coach Turner's unprofessional conduct played a role in Martin's struggles.

         After being fired, Coach Turner filed suit in federal court against Defendant Paul, Weiss and Defendant Theodore Wells (collectively, "Defendants"), the authors of the report, alleging defamation claims under Florida law.

         Turner attached a copy of the Report to his complaint. The district court dismissed Turner's complaint with prejudice for failure to state a claim, and Turner appealed.

         After careful review, and with the benefit of oral argument, we affirm the district court's dismissal. We conclude that none of the challenged statements contained in the Report are actionable for defamation. Further, no alleged omission or juxtaposition of facts in the Report states a claim for defamation by implication. We also hold that Turner is a public figure who has failed to adequately plead that the Defendants acted with malice in drafting and publishing the Report.

         I. BACKGROUND

         We recount the relevant events as set forth in Turner's complaint and the Report attached thereto.

         A. Coach Turner's Career

         Coach Turner played college football at Boston College, where he served as team captain during the 1987 college football season. After graduating, Turner began his coaching career at his former high school before serving as an offensive coordinator for an English semi-professional team.

         In 1990, Coach Turner joined the United States Marine Corps, serving as a platoon commander and operations officer for four years in the Middle Eastern, Asian, and European theaters. Following an honorable discharge in 1994, Turner returned to coaching football. Between 1994 and 2011, Turner held various assistant coaching positions at Northeastern University, Louisiana Tech University, Harvard University, Temple University, the University of Delaware, and Texas A&M University before being hired as the Dolphins offensive line coach for the 2012 season. Coach Turner served as the Dolphins offensive line coach until his termination in February 2014.

         B. Martin's Departure from the Dolphins

         At the beginning of the 2013 season, Jonathan Martin was a starting left tackle on the Dolphins offensive line. The Dolphins drafted Martin in the second round of the 2012 NFL draft. Martin played for four years at Stanford University. By draft time, Martin had established himself as a talented offensive lineman. The Dolphins immediately used Martin's talents, starting him every game during the 2012 season. While his first year was challenging, Martin was pleased with his overall performance.

         As recounted in greater detail below, Martin's fellow offensive linemen subjected him to extensive taunting during his first year, referring to him with crude and often racially-insensitive terms. Martin's peers also disparaged his sister and mother with sexually explicit remarks.

         Instead of fighting back, Martin decided to endure the harassment, believing that the bullying would subside after his rookie season ended with the Dolphins. But the taunting endured into the offseason, forcing Martin to realize that the bullying would likely continue into his second year with the Dolphins team.

         According to Martin, the harassment continued and worsened during the 2013 season. Within a few months, Martin had had enough. On October 28, 2013, Martin abruptly left a team dinner at the Dolphins practice facility. That same day, Martin checked himself into a hospital seeking psychiatric treatment.

         Shortly thereafter, the national sports media began reporting that Martin had "gone AWOL." The story quickly gained national attention. Reports began to surface that Martin had been a victim of locker room bullying and harassment by his Dolphins teammates.

         C. The Investigation

         On November 6, 2013, the NFL announced that it had retained Paul, Weiss to conduct "an independent investigation into issues of workplace conduct at the Miami Dolphins" and to "prepare a report for the commissioner." The NFL stated that Paul, Weiss partner Theodore Wells would lead the investigation and that the report would be made public.

         During the course of the investigation, Wells and other Paul, Weiss partners, associates, and paralegals interviewed current and former Dolphins players, Dolphins coaching staff and front office personnel, and Martin's parents and agent. Wells's group also reviewed emails and text messages between Martin and his teammates and coaches.

         Paul, Weiss interviewed Coach Turner twice during the investigation. The first interview occurred in November 2013, with Wells accompanied by two other members of his law firm. Turner did not bring his own attorney to the interview, but a member of the Dolphins' legal staff was present. In December 2013, Wells and a member of his law firm interviewed Turner a second time via teleconference. As was true during the first interview, a member of the Dolphins' legal staff was present. During the three month investigation, Paul, Weiss interviewed more than one hundred witnesses and reviewed thousands of documents.

         D. The Report

         On February 14, 2014, Paul, Weiss published its findings in a 144-page report ("the Report"). The Report explained that Martin's teammates subjected him to "persistent harassment, " which "contributed to Martin's decision to leave the team." The Report noted that Dolphins coaches and players created a culture that enabled the bullying by discouraging players from "snitching" on other players. It concluded that "the treatment of Martin and others in the Miami Dolphins organization at times was offensive and unacceptable in any environment, including the world professional football players inhabit."

         Five days after Paul, Weiss released its Report, the Dolphins fired Coach Turner.

         II. PROCEDURAL HISTORY

         In September 2015, Plaintiff Turner filed his complaint against the Defendants, alleging that the Report defamed him. The district court interpreted Turner's complaint as advancing three claims of defamation under Florida law: (1) defamation per se, (2) common law defamation based on actual malice, recklessness or negligence, and (3) defamation by implication. Turner v. Wells, 198 F.Supp.3d 1355, 1364 (S.D. Fla. 2016).

         In October 2015, the Defendants moved to dismiss Plaintiff Turner's complaint, under Federal Rule of Civil Procedure 12(b)(6), arguing that Turner failed to state a claim for defamation or defamation by implication. The Defendants contended that: (1) the Report consisted of opinions and therefore was not actionable in a defamation suit; (2) Turner's complaint misstated what the Report actually said and failed to identify any false statement of fact in the Report; and (3) in any event, Turner was a public figure and failed to adequately plead actual malice in his complaint.

         In July 2016, the district court entered a comprehensive order granting the Defendants' motion to dismiss. Turner, 198 F.Supp.3d at 1355-81. This is Turner's appeal.

         III. STANDARD OF REVIEW

         We review de novo a district court's dismissal of a complaint for failure to state a claim. Bishop v. Ross Earle & Bonan, P.A., 817 F.3d 1268, 1270 (11th Cir. 2016).

         In analyzing Turner's defamation claims, we apply Florida's substantive law. Horowitch v. Diamond Aircraft Indus., Inc., 645 F.3d 1254, 1257 (11th Cir. 2011). Where the highest court-in this case, the Florida Supreme Court-has spoken on the topic, we follow its rule. Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1348 (11th Cir. 2011).

         Where that court has not spoken, however, we must predict how the highest court would decide this case. Guideone Elite Ins. Co. v. Old Cutler Presbyterian Church, Inc., 420 F.3d 1317, 1326 n.5 (11th Cir. 2005). Decisions of the intermediate appellate courts-here, the Florida District Courts of Appeal- provide guidance for this prediction. See Bravo v. United States, 577 F.3d 1324, 1325 (11th Cir. 2009) (per curiam) (citing West v. Am. Tel. & Tel. Co., 311 U.S. 223, 237, 61 S.Ct. 179, 183 (1940)). As a general matter, we must follow the decisions of these intermediate courts. Id. at 1325-26. But we may disregard these decisions if persuasive evidence demonstrates that the highest court would conclude otherwise. Id.

         We first review Florida law regarding the tort of defamation. We then apply it to passages in the Report that Turner claims are defamatory.

         IV. FLORIDA LAW

         Defamation under Florida law has these five elements: (1) publication; (2) falsity; (3) the statement was made with knowledge or reckless disregard as to the falsity on a matter concerning a public official, or at least negligently on a matter concerning a private person; (4) actual damages; and (5) the statement must be defamatory. Jews For Jesus, Inc. v. Rapp, 997 So.2d 1098, 1106 (Fla. 2008).

         True statements, statements that are not readily capable of being proven false, and statements of pure opinion are protected from defamation actions by the First Amendment. Keller v. Miami Herald Publ'g Co., 778 F.2d 711, 714-15, 717 (11th Cir. 1985) (applying Florida law); Blake v. Giustibelli, 182 So.3d 881, 884 n.1 (Fla. Dist. Ct. App. 2016) ("Statements of pure opinion are not actionable."); Anson v. Paxson Commc'ns Corp., 736 So.2d 1209, 1211 (Fla. Dist. Ct. App. 1999); Miami Child's World, Inc. v. Sunbeam Television Corp., 669 So.2d 336, 336 (Fla. Dist. Ct. App. 1996).

         Under Florida law, a defendant publishes a "pure opinion" when the defendant makes a comment or opinion based on facts which are set forth in the publication or which are otherwise known or available to the reader or listener as a member of the public. From v. Tallahassee Democrat, Inc., 400 So.2d 52, 57 (Fla. Dist. Ct. App. 1981). Mixed expression of opinion occurs when an opinion or comment is made which is based upon facts regarding the plaintiff or his conduct that have not been stated in the publication or assumed to exist by the parties to the communication. Id.; Stembridge v. Mintz, 652 So.2d 444, 446 (Fla. Dist. Ct. App. 1995).

         Whether the statement is one of fact or opinion and whether a statement of fact is susceptible to defamatory interpretation are questions of law for the court. Keller, 778 F.2d at 715; Fortson v. Colangelo, 434 F.Supp.2d 1369, 1379 (S.D. Fla. 2006); From, 400 So.2d at 56-57. When making this assessment, a court should construe statements in their totality, with attention given to any cautionary terms used by the publisher in qualifying the statement. Keller, 778 F.2d at 717. It is also the court's function to determine "whether an expression of opinion is capable of bearing a defamatory meaning because it may reasonably be understood to imply the assertion of ...


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