JAMES L. TURNER, Plaintiff-Appellant,
THEODORE V. WELLS, JR., PAUL, WEISS, RIFKIND, WHARTON & GARRISON, LLP, Defendants-Appellees.
from the United States District Court for the Southern
District of Florida D.C. Docket No. 0:15-cv-61855-DPG
DUBINA and HULL, Circuit Judges and RESTANI, [*] Judge.
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.
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
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
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.
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.
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
recount the relevant events as set forth in Turner's
complaint and the Report attached thereto.
Coach Turner's Career
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.
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
Martin's Departure from the Dolphins
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
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
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
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.
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
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.
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.
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.
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
days after Paul, Weiss released its Report, the Dolphins
fired Coach Turner.
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).
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
2016, the district court entered a comprehensive order
granting the Defendants' motion to dismiss.
Turner, 198 F.Supp.3d at 1355-81. This is
STANDARD OF REVIEW
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.
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).
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.
first review Florida law regarding the tort of defamation. We
then apply it to passages in the Report that Turner claims
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).
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).
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).
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