Courser v. Allard et al

BRIEF in support of MOTION to dismiss 73

W.D. Mich.November 18, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN TODD COURSER, Plaintiff, v. KEITH ALLARD; BENJAMIN GRAHAM; JOSHUA CLINE; JOSEPH GAMRAT; MICHIGAN HOUSE OF REPRESENTATIVES, KEVIN G. COTTER, in his official capacity as Speaker of the Michigan House of Representatives (District 99) and in his individual capacity; TIM L. BOWLIN, in his official capacity as Business Director/CFO and in his individual capacity; BROCK SWARTZLE, in his official capacity as Chief of Staff/General Counsel and in his individual capacity; NORM SAARI, in his official capacity as former Chief of Staff and in his individual capacity; EDWARD McBROOM, in his official capacity as Representative for District 108 and in his individual capacity; ANDREA LaFONTAINE, in her official capacity as Representative for District 32 and in her individual capacity; ROB VERHEULEN, in his official capacity as Representative for District 74 and in his individual capacity; HASSAN BEYDOUN, in his official capacity as legal counsel of the Michigan House of Representatives and in his individual capacity; KURT HEISE, in his official capacity as Representative for District 20 and in his individual capacity; DAVID HORR; VINCENT KRELL, RADISSON HOTELS INTERNATIONAL, INC.; RADISSON GROUP, INC. CARLSON REZIDOR HOTEL GROUP; CHAD LIVENGOOD, in his official capacity as a reporter for the Detroit News and in his individual capacity; THE DETROIT NEWS, INC.; the MICHIGAN STATE POLICE; KRAIG BRITVEC, in his official capacity as Detective with the Michigan State Police and in his individual capacity; JEREMY BREWER, in his official capacity as Detective with the Michigan State Police and in his individual capacity, Defendants. Case No.: 1:16-cv-01108-GJQ-PJG Hon. Gordon J. Quist BRIEF IN SUPPORT OF MOTION TO DISMISS BY DEFENDANTS THE DETROIT NEWS AND CHAD LIVENGOOD Case 1:16-cv-01108-GJQ-PJG ECF No. 74 filed 11/18/16 PageID.1255 Page 1 of 24 i Table of Contents INTRODUCTION ...........................................................................................................................1 THE APPLICABLE STANDARD AND BACKGROUND FACTS .............................................3 A. The 12(b)(6) Context ...............................................................................................3 B. Factual Background .................................................................................................4 ARGUMENT ...................................................................................................................................5 A. The 12(b)(6) Standard ..............................................................................................5 B. Plaintiff Fails to State a Claim against the News or Livengood in Count 2 ............6 C. Plaintiff Fails to State a Claim against the News or Livengood in Count 7 ............7 D. Plaintiff Fails to State a Claim against the News or Livengood in Count 14 ..........9 1. Plaintiff Fails to State a Claim for Intentional Infliction of Emotional Distress .......................................................................................9 2. The Claim Is Barred by the First Amendment in Any Event ....................11 3. Plaintiff Has No Claim for Negligent Infliction of Emotional Distress .......................................................................................................11 E. Plaintiff Fails to State a Claim against the News or Livengood in Counts 15 and 16 ................................................................................................................12 1. Courser’s Shotgun Style Pleading is Legally Inadequate ..........................12 2. Plaintiff Fails to Even Allege the Elements Necessary to State a Claim Under §§ 1962(a) or (b) ..................................................................12 3. Plaintiff Fails to State a Claim Under § 1962(c) ........................................13 4. Plaintiff Fails to State a Claim against the News or Livengood for RICO Conspiracy .......................................................................................15 F. Plaintiff Fails to State a Claim against the News or Livengood in Count 19 ........15 G. Plaintiff Fails to State a Claim against the News or Livengood in Count 21 ........16 H. Plaintiff Fails to State a Claim against the News or Livengood in Count 22 ........17 CONCLUSION ..............................................................................................................................17 Case 1:16-cv-01108-GJQ-PJG ECF No. 74 filed 11/18/16 PageID.1256 Page 2 of 24 ii 22894224.5 TABLE OF AUTHORITIES Page(s) CASES Advocacy Org. for Patients & Providers v. Auto Club Ins. Ass’n, 176 F.3d 315 (6th Cir. 1999) ...................................................................................................13 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ...............................................................................................................5, 6 Bartnicki v. Vopper, 532 U.S. 514 (2001) ...............................................................................................................8, 9 Bass v. Robinson, 167 F.3d 1041 (6th Cir. 1999) ...................................................................................................7 Bell Atlantic Corp. v. Twombly, 550 U.S. 555 (2007) ...................................................................................................................5 Cousineau v. Ford Motor Co., 140 Mich. App. 19 ...................................................................................................................16 Craigshead v. EF Hutton & Co., 899 F.2d 485 (6th Cir. 1989) ...................................................................................................15 DMC Plumbing & Remodeling, LLC v. Fox News Network, LLC, No. 12-cv-12867, 2012 WL 5906870 (E.D. Mich. Nov. 26, 2012) .......................................3, 6 Duran v. The Detroit News, 200 Mich. App. 622 ...........................................................................................................10, 11 Ferrara v Detroit Free Press, 1998 WL 1788159 (E.D. Mich. May 6, 1998).......................................................................8, 9 Greenberg v. Life Ins. Co. of Virginia, 177 F.3d 507 (6th Cir. 1999) .....................................................................................................3 H.J., Inc. v. Nw. Bell Tele. Co., 492 U.S. 229 (1989) .................................................................................................................14 Hazime v. Fox TV Stations, No. 12-cv-15072, 2013 WL 4483485 ........................................................................................3 Heinrich v. Waiting Angels Adoption Servs., Inc., 668 F.3d 393 (6th Cir.2012) ....................................................................................................15 Case 1:16-cv-01108-GJQ-PJG ECF No. 74 filed 11/18/16 PageID.1257 Page 3 of 24 iii 22894224.5 Kerrigan v. ViSalus, Inc., 112 F. Supp. 3d 580, 601 (E.D. Mich. 2015) .....................................................................12, 14 Keyes v. Deutsche Bank Nat’l Trust Co., 921 F. Supp. 2d 749 (E.D. Mich. 2013) ...................................................................................16 Ledsinger v. Burmeister, 114 Mich. App. 12 ...................................................................................................................10 Maxwell v. Dodd, 662 F.3d 418 (6th Cir. 2011) .....................................................................................................7 Moon v. Harrison Piping Supply, 465 F.3d 719 (6th Cir.2006) ..............................................................................................14, 15 Nieman v. NLO, Inc., 108 F.3d 1546 (6th Cir. 1997) ...................................................................................................3 Ouwinga v. Benistar 419 Plan Services, Inc., 694 F.3d 783 (6th Cir. 2012) ...................................................................................................13 Pelletier v. Zweifel, 921 F.2d 1465 (11th Cir. 1991) ...............................................................................................12 Petroleum Enhancer, LLC v. Woodward, 690 F.3d 757 (6th Cir. 2012) ...................................................................................................16 Roberts v. Auto-Owners Ins. Co., 422 Mich. 594 ..........................................................................................................................10 Ruffin-Steinback v. dePasse, 82 F. Supp. 2d 723 (E.D. Mich. 2000) aff’d, 267 F.3d 457 (6th Cir. 2001) ............................10 Smith v. Our Lady of the Lake Hospital, 960 F.2d 439 (5th Cir. 1992) ...................................................................................................12 Snyder v. Phelps, 526 U.S. 443 (2011) .................................................................................................................11 Sullivan v Gray, 117 Mich. App. 476 ...................................................................................................................8 United Bhd. of Carpenters, Local 610 v. Scott, 463 U.S. 825, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983) ............................................................7 Vemco, Inc. v. Camardella, 23 F.3d 129 (6th Cir. 1994) .....................................................................................................12 Case 1:16-cv-01108-GJQ-PJG ECF No. 74 filed 11/18/16 PageID.1258 Page 4 of 24 iv 22894224.5 Weiner v. Klais & Co., 108 F.3d 86 (6th Cir. 1997) .......................................................................................................3 STATUTES 18 U.S.C. § 1961 ............................................................................................................................14 18 U.S.C. § 1962 ................................................................................................................12, 13, 15 42 U.S.C. § 1985 ................................................................................................................2, 6, 7, 14 Federal Wiretapping Act ..........................................................................................................7, 8, 9 MCL § 750.505 ..............................................................................................................................16 MCLA 750.539(d) ...........................................................................................................................7 OTHER AUTHORITIES U.S. Constitution, First Amendment..........................................................................................9, 11 Michigan Constitution Article IV, § 16 .........................................................................................16 Fed. R. Civ. P. 8 ...............................................................................................................................2 Fed. R. Civ. P. 11 .............................................................................................................................3 Fed. R. Civ. P. 12(b)(6)............................................................................................................3, 4, 5 Fed. R. Civ. P 56 ..............................................................................................................................3 Case 1:16-cv-01108-GJQ-PJG ECF No. 74 filed 11/18/16 PageID.1259 Page 5 of 24 1 BRIEF IN SUPPORT OF MOTION TO DISMISS BY DEFENDANTS THE DETROIT NEWS AND CHAD LIVENGOOD INTRODUCTION “Curiouser and curiouser.” -Alice in Wonderland As detailed at great length in his Complaint, Plaintiff Todd Courser has caused himself considerable problems in the past few years. He was elected to the Michigan House of Representatives as a Republican in 2014. He promptly commenced a public battle with the State Republican Party and the Republic leadership of the House. Purportedly standing for a family values agenda, this married father of four entered into a sexual affair with fellow conservative house member Cindy Gamrat, who is also married and the mother of three. Although Courser and Gamrat were from opposite sides of the state, they made the unusual move of combining their offices. More than one person believed they had done so to facilitate their extramarital relationship. Courser and Gamrat began receiving anonymous text messages threatening that if they did not resign their office, the sender (who turned out to be Gamrat’s cuckolded husband) would publicly expose their affair. In response, Courser tried to enlist one of his aides (Defendant Graham) to send a patently misleading and extremely bizarre mass email that would be in his words “a controlled burn” that would “inoculate the herd.” In sum, Courser apparently believed that if he orchestrated a worse rumor about himself then his constituents would shrug off his affair with Gamrat when it was exposed. When Graham refused to join in this scheme, someone else sent the anonymous email. At this point, Courser and Gamrat became the subjects of the House of Representatives’ Business Office investigation and a Michigan State Police investigation. Courser subsequently resigned voluntarily from his position and has now been bound over to Ingham County Circuit Court on Case 1:16-cv-01108-GJQ-PJG ECF No. 74 filed 11/18/16 PageID.1260 Page 6 of 24 2 22894224.5 criminal charges of misconduct in office. Courser, oddly but perhaps predictably, views these events as the consequences of an elaborate political conspiracy against him rather than as the inevitable result of his own poor decisions and misconduct. Courser’s 1,073 paragraph complaint, which makes no effort to comply with Federal Rules of Civil Procedure 8 or 11, weaves a byzantine conspiracy theory that defies common sense. The alleged conspirators range from the Michigan House of Representatives to his political enemies to the Michigan State Police to the Attorney General to the husband of the woman with whom he was having his extramarital affair to the hotel where they conducted their trysts. Plaintiff’s theory seems to be that this wide array of defendants conspired together to pressure him into resigning his House Seat. The irony, of course, is that in reality his resignation was the result of his own failed conspiracy to dupe the public and his legislative colleagues. Courser’s inclusion of the Detroit News and its reporter Chad Livengood (sometimes collectively “the News Defendants”) in this hallucinatory conspiracy theory is nothing more than a desperate effort to shoot the messenger. The extent of Courser’s allegations against News Defendants is that they reported on his bizarre conduct, the conversations he had in his effort to pull off his bizarre scheme, and the resulting investigations and criminal charges. But this is no “conspiracy”; to the contrary, it is what happens when a newspaper and its reporter do their job of informing the public about the conduct of elected public officials. The Complaint alleges a mishmash of claims against the News Defendants in Count 2 (Conspiracy to Violate Civil Rights Pursuant to 42 U.S.C. § 1985), Count 7 (Violation of Federal Wiretapping Statute and Michigan Eavesdropping Statute), Count 14 (Intentional Infliction of Emotional Distress), Count 15 (Violation of RICO: 18 U.S.C. §§ 1962 (a), (b) and (c)), Count 16 Conspiracy to Violate RICO: 18 U.S.C. §§ 1962 (d)), Count 19 (Conspiracy and Concert of Case 1:16-cv-01108-GJQ-PJG ECF No. 74 filed 11/18/16 PageID.1261 Page 7 of 24 3 22894224.5 Actions), Count 21 (Declaratory Relief) and Count 22 (Injunctive Relief). Every one of these counts fails to state a claim against the News or Livengood and should be promptly dismissed pursuant to Fed. R. Civ. P. 12(b)(6).1 THE APPLICABLE STANDARD AND BACKGROUND FACTS A. The 12(b)(6) Context In deciding a motion brought under Fed. R. Civ. P. 12(b)(6), a court looks to the factual allegations of the complaint, although it can also consider documents referenced in and exhibits attached to the complaint.2 Where the complaint refers to a document central to the plaintiff’s claim, it is appropriate in a 12(b)(6) context for the defendant to attach the entire document to a motion to dismiss.3 Where claims are based on a news report referenced in the complaint, a court may properly review the report in its entirety in the context of a 12(b)(6) motion. See DMC Plumbing & Remodeling, LLC v. Fox News Network, LLC, No. 12-cv-12867, 2012 WL 5906870 (E.D. Mich. Nov. 26, 2012) (ruling in a defamation case that the DVD of a broadcast would be considered by the court in ruling on the defendant’s motion to dismiss); Hazime v. Fox TV 1 Indeed, the claims against the News and Livengood are so preposterous, that this is one of the rare cases in which sanctions are appropriate. Pursuant to Fed. R. Civ. P. 11, counsel for the News Defendants has served a proposed motion for sanctions on counsel for Plaintiff and requested voluntary withdrawal of his claims against them. The motion for sanctions will be filed upon the expiration of the safe harbor period should counsel for Plaintiff refuse to withdraw the claims. 2 See Greenberg v. Life Ins. Co. of Virginia, 177 F.3d 507, 514 (6th Cir. 1999); Nieman v. NLO, Inc., 108 F.3d 1546, 1554 (6th Cir. 1997); Estate of Lacko ex rel Griswatch v. Mercy Hosp., Cadillac, 829 F. Supp. 2d 543, 547-548 (E.D. Mich. 2011). 3 See, e.g., Greenberg, supra (where plaintiff referred to insurance policies in the complaint, defendant could provide copies of the policies in their entirety as part of its Rule 12(b)(6) motion without converting it into a Rule 56 motion); Weiner v. Klais & Co., 108 F.3d 86, 89 (6th Cir. 1997) (ruling that “documents that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff’s complaint and are central to her claim”). Case 1:16-cv-01108-GJQ-PJG ECF No. 74 filed 11/18/16 PageID.1262 Page 8 of 24 4 22894224.5 Stations, No. 12-cv-15072, 2013 WL 4483485 (E.D. Mich. Aug. 19, 2013) (considering, in the context of a rule 12(b)(6) motion, a DVD of the television broadcast that plaintiffs referenced in their complaint for defamation and other torts). Copies of those decisions are filed as Exhibit A. Accordingly, the Court may-consistent with 12(b)(6)-review the news reports referenced in the Complaint as if they were fully incorporated into that pleading. B. Factual Background Courser’s Complaint does not draw the News Defendants into his imagined conspiracy until August of 2015.4 At that time, the News published a report by Livengood on a late night conversation Courser had in May of 2015 with his aide Ben Graham. See generally, Complaint ¶¶ 465-478. A copy of that August 7, 2015 news report “Recordings: State rep asked aide to hide relationship” is attached as Exhibit B. The Detroit News report describes how Courser summoned Graham to his office after 10:00 p.m. at night in order to “destroy me.” Understandably puzzled and concerned by the tone of that request, Graham secretly (and lawfully) recorded this conversation. Courser revealed to Graham that he had concocted a cover up to blunt the anonymous text messages he and Gamrat were receiving (as it turned out, from Gamrat’s husband) and to distract attention from their affair. His plan centered around having Graham distribute an anonymous email stating that Courser had been caught having sex with a male prostitute-a particularly inflammatory rumor given Courser’s conservative “family values” platform. Courser described the purpose of this scheme as being to create a “controlled burn” that 4 Plaintiff tries to bolster his nonexistent claim against the News and Livengood by suggesting that the phone that was being used to send the text messages was “registered” to Livengood. (See Complaint ¶¶ 225, 469). But then later he concedes that this burner phone was in fact purchased and used by Cindy Gamrat’s husband and one of his friends who sent the texts. (See Complaint ¶¶ 256-257, 265-268). Case 1:16-cv-01108-GJQ-PJG ECF No. 74 filed 11/18/16 PageID.1263 Page 9 of 24 5 22894224.5 would “inoculate the herd”-presumably a reference to his and Gamrat’s constituents and political fellow travelers. Courser explained that in a “controlled burn” you “do a little bit of truth mixed in with a lot of lies.” Courser believed that this strategy would “make anything else that comes out after that - that isn’t a video - mundane, tame by comparison.” Courser’s Complaint alleges that the News Defendants conspired against him by accurately reporting on this newsworthy, if bizarre, behavior. The Complaint further alleges that the News somehow conspired with others by reporting on the ensuing House Business Office investigation, the state police investigation, and the attorney general’s investigation (Complaint ¶¶ 272-274). Courser admits that those investigations happened; indeed, their existence is central to his conspiracy claims against other defendants. But he somehow believes that the reporting of the News Defendants constitutes an actionable “conspiracy.” In this 1,073 paragraph Complaint, those are the only allegations against the News Defendants. ARGUMENT COURSER’S COMPLAINT AGAINST THE DETROIT NEWS AND ITS REPORTER CHAD LIVENGOOD FAILS TO STATE ANY CLAIM UPON WHICH RELIEF CAN BE GRANTED A. The 12(b)(6) Standard A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. To survive a motion to dismiss, a complaint must contain more than “labels or conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 555, 570 (2007). Nor does a complaint “suffice if it tenders ‘naked assertions’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557). Rather, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility Case 1:16-cv-01108-GJQ-PJG ECF No. 74 filed 11/18/16 PageID.1264 Page 10 of 24 6 22894224.5 when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). Courser has manifestly failed to make out a plausible claim against the Defendant. B. Plaintiff Fails to State a Claim against the News or Livengood in Count 2 In Count 2 (¶¶ 778 to 789) Courser claims that all of the Defendants, including the News Defendants, engaged in a conspiracy to violate his constitutional rights in violation of 42 U.S.C. § 1985. This provision creates a cause of action for conspiracy to interfere with civil rights and prohibits three categories of conduct: (1) conspiring to prevent officers of the United States from performing their duties; (2) conspiring to obstruct justice; or (3) conspiring to deprive persons of their equal protection rights or privileges. See 42 U.S.C. § 1985. Courser has not met and cannot meet the requirements of § 1985.5 By its terms, 1985(1) creates a cause of action related to a conspiracy to interfere with the duties of officials of the United States. Courser does not allege any interference with the duties of an officer of the United States and he neither is nor was such an official His claim under Section 1985(1) therefore fails. Section 1985(2) creates a cause of action specifically related to conspiracies to interfere with the judicial process-for example, by way of “conspir[ing] to deter, by force, intimidation, or threat” attendance of truthful testimony of a party or witness. 42 U.S.C. 1985(2); see also Fox, 173 Fed. App’x at 376 (“§ 1985(2) …. prohibits conspiracies to influence parties, witness[es], or jurors in federal court proceedings [and] conspiracies to interfere with due process in state courts with the intent to deprive persons of their equal protection rights” 5 Courser’s wholly conclusory allegation (see for example Complaint ¶ 780) does not even indicate which subsection of § 1985 he is claiming conspirators violated. Case 1:16-cv-01108-GJQ-PJG ECF No. 74 filed 11/18/16 PageID.1265 Page 11 of 24 7 22894224.5 (emphasis added)). Again, this subsection of § 1985 simply does not apply to Courser’s allegations and he does not and cannot state a claim under subsection (2). Finally, § 1985(3) prohibits conspiracies to deprive persons of their equal protection rights. 42 U.S.C. 1985(3). To establish a claim under this subsection, “the claimant must show that (1) ‘two or more persons …. conspire[d]’ (2) ‘for the purpose of depriving . . . [the claimant] of the equal protection of the laws’ due to racial or class-based animus and that the conspirators (3) committed an act ‘in furtherance of the object of such conspiracy’ (4) that ‘injured’ the claimant.” Maxwell v. Dodd, 662 F.3d 418, 422 (6th Cir. 2011) (quoting 42 U.S.C. 1985(3)) (emphasis added); see also United Bhd. of Carpenters, Local 610 v. Scott, 463 U.S. 825, 828-29, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983) and Bass v. Robinson, 167 F.3d 1041, 1050 (6th Cir. 1999) (to state a claim, the plaintiff must allege that “the conspiracy was motivated by racial, or other class-based, invidiously discriminatory animus”). Courser does not and cannot allege membership in any protected class or discrimination against him because of such membership. Accordingly, any claim under § 1985(3) also fails. C. Plaintiff Fails to State a Claim against the News or Livengood in Count 7 In Count 7 (¶¶ 842 to 870), Courser includes Livengood and the News among the Defendants who he claims violated the Federal Wiretapping Act and the Michigan Eavesdropping Statute. The Complaint alleges only that the News Defendants received and published the contents of the Graham/Courser and Graham/Courser/Gamrat conversations that Graham had recorded as a participant. Count 7 claims that by doing so they violated the Federal Wiretapping Act (18 USC § 2511) and the Michigan Eavesdropping Statute (MCLA 750.539(d)). See Complaint at ¶¶ 863 and 867-868. This allegation as to the News and Livengood is utterly without merit on its face and fails to state a claim upon which relief can be granted. Case 1:16-cv-01108-GJQ-PJG ECF No. 74 filed 11/18/16 PageID.1266 Page 12 of 24 8 22894224.5 There are only two decisions that the court need read to dismiss the allegations of Count 7 against the News and Livengood. Ferrara v Detroit Free Press, 1998 WL 1788159 (E.D. Mich. May 6, 1998) and Bartnicki v. Vopper, 532 U.S. 514 (2001). In Ferrara, the estranged husband of sitting Wayne County Judge Geraldine Ferrara had recorded a number of their telephone conversations where the judge had used crude and racist language. He threatened to disclose those to the Detroit Free Press if she did not forgive his outstanding child support obligations and surrender custody of their children to him. When she refused to do so he provided the tapes to the Free Press, which in turn reported on them. As with Courser, Ferrara claimed that the Free Press had violated the Federal Wiretapping Act and the Michigan Eavesdropping Statute. Judge Patrick Duggan dismissed both claims against the Free Press and its reporter. As to the Federal Wiretapping Act, Judge Duggan found that an interception by a participant to a conversation was not prohibited unless it had been recorded for tortious or criminal purposes. He further found that although Judge Ferrara’s ex-husband had done so, the Free Press could not be liable unless it had “reason to know that the conversations had been impermissibly recorded,” i.e., for tortious or criminal purposes. Judge Duggan found that the Free Press had no reason to think that the ex-husband had recorded this conversation for any such purpose. The same conclusion is even more compelling in this case. Graham did nothing but record a public official discussing a bizarre cover up of his own misconduct. Courser has alleged no facts indicating that Graham had a criminal or tortious purpose in doing so or that the News Defendants were aware of any such purpose. In dismissing the claims under the Michigan Eavesdropping Act, Judge Duggan relied upon Sullivan v Gray, 117 Mich. App. 476; 324 N.W.2d 58 (1982). He noted that the Michigan Case 1:16-cv-01108-GJQ-PJG ECF No. 74 filed 11/18/16 PageID.1267 Page 13 of 24 9 22894224.5 Court of Appeals there held that the statute’s definition of eavesdropping precludes an action against a participant to a conversation. Because Ferrara’s ex-husband was such a participant, Judge Duggan ruled summary judgment was proper as to the state eavesdropping claim. The same reasoning applies here: Graham participated in the conversation, so no state statutory claim exists. Moreover, since the Ferrara decision, the United States Supreme Court has emphasized that the First Amendment protects the News Defendants from these sorts of claims. In Bartnicki v. Vopper, 532 U.S. 514 (2001), the Supreme Court held that the First Amendment precluded liability against a party who published tapes of telephone conversations-even though the party knew that those conversations were illegally recorded by others-because the tapes dealt with matters of public interest. In that case, an unknown person had intercepted and recorded the telephone conversations of a union president and the union’s chief negotiator regarding contentious negotiations with a local school board. Someone then turned this tape over to various media entities that reported on its contents. Despite the fact that the conversation had been illegally intercepted and despite the fact that the media entities had reason to know this, the Supreme Court unequivocally ruled that the First Amendment precluded a claim against the media entities under the Federal Wiretapping Act. “[A] stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about matters of public concern,” the Court declared. Id. at 535. D. Plaintiff Fails to State a Claim against the News or Livengood in Count 14 1. Plaintiff Fails to State a Claim for Intentional Infliction of Emotional Distress In Count 14 (¶¶ 944-951) Plaintiff alleges Intentional or Negligent Infliction of Emotional Distress against all defendants. Courser’s allegations against the News Defendants Case 1:16-cv-01108-GJQ-PJG ECF No. 74 filed 11/18/16 PageID.1268 Page 14 of 24 10 22894224.5 amount to this: they published news reports concerning the conduct of public officials. Such allegations do not suffice to plead “extreme” or “outrageous” conduct on the part of these defendants, so his claim for intentional infliction (IIED) fails. Furthermore, Michigan courts have declined to recognize a claim for negligent infliction of emotional distress in circumstances like these. To survive a motion to dismiss, a claim for IIED must allege “(1) extreme and outrageous conduct; (2) intent or recklessness; (3) causation; and (4) severe emotional distress.” Roberts v. Auto-Owners Ins. Co., 422 Mich. 594, 602-03; 374 N.W.2d 905, 908-09 (1985) (internal citations omitted). The Michigan courts have imposed a rigorous standard with which a plaintiff must comply. “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Id. (quoting Restatement (Second) of Torts, § 46, comment d, at 72-73) (emphasis added). The defendant’s intent must go beyond simple malice or a desire to hurt someone’s feelings. Rather, the case must be one where “the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’” Ledsinger v. Burmeister, 114 Mich. App. 12, 18; 318 N.W.2d 558, 561 (1982). See also Duran v. The Detroit News, 200 Mich. App. 622, 629-30; 504 N.W.2d (1993) (holding that whether the alleged conduct rises to the level of IIED is a question of law for the court and dismissing the IIED claim there) and Ruffin-Steinback v. dePasse, 82 F. Supp. 2d 723, 735 n.10 (E.D. Mich. 2000) aff’d, 267 F.3d 457 (6th Cir. 2001) (holding that errors in an NBC mini-series based on the Temptations, including inaccurate depiction of Ruffin as a “dead-beat dad,” and “suggest[ion] Case 1:16-cv-01108-GJQ-PJG ECF No. 74 filed 11/18/16 PageID.1269 Page 15 of 24 11 22894224.5 that Earline Ruffin associated with a pimp,” “cannot be considered so extreme in degree as to go beyond all possible bounds of decency.”). In Count 14 of his Complaint, Plaintiff lumps all Defendants together and claims that their conduct was “intentional,” “extreme [and] outrageous,” and caused severe emotional distress (Complaint ¶¶ 945-946, 948). Plaintiff states no facts in support of these allegations, and certainly none with respect to the News Defendants. This claim should be dismissed. 2. The Claim Is Barred by the First Amendment in Any Event Snyder v. Phelps, 526 U.S. 443 (2011) makes clear that Courser’s IIED claim is barred by the First Amendment in any event. Snyder involved deeply offensive speech-a protest by the Westboro Baptist “Church” near the funeral of a Marine killed in Iraq. The United States Supreme Court nevertheless held that the First Amendment barred the IIED lawsuit brought by the fallen Marine’s father because it was based on statements regarding “matters of public concern”-as opposed to purely private concern. In so ruling, the Supreme Court repeated its prior holdings that speech is of public concern when it “‘is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.’” Id. at 453 (quoting San Diego v. Roe, 543 U.S. 77, 83-84 (2004)). Because Courser’s case manifestly involves speech on matters of public concern, his IIED claim is similarly barred. 3. Plaintiff Has No Claim for Negligent Infliction of Emotional Distress In Duran, supra, the Michigan Court of Appeals held that “the tort of negligent infliction of emotional distress is inapplicable where a plaintiff claims to have been injured by publication of false statements about the plaintiff.” Duran, 200 Mich. App. at 629. Plaintiff’s allegations of negligent infliction of emotional distress therefore fail to state a claim as a matter of Michigan law. Case 1:16-cv-01108-GJQ-PJG ECF No. 74 filed 11/18/16 PageID.1270 Page 16 of 24 12 22894224.5 E. Plaintiff Fails to State a Claim against the News or Livengood in Counts 15 and 16 In Counts 15 and 16, Plaintiff asserts violations of each subsection of the Racketeer Influenced and Corrupt Organizations (“RICO”) Act against all Defendants, including Livengood and the News. See Complaint ¶¶ 952-1008. It is no secret that courts view civil RICO claims with skepticism. The treble damages available to a civil RICO plaintiff create the potential for abusive and frivolous suits, and courts accordingly closely review complaints alleging RICO claims to ensure they meet pleading standards. See, e.g., Smith v. Our Lady of the Lake Hospital, 960 F.2d 439 (5th Cir. 1992); Pelletier v. Zweifel, 921 F.2d 1465 (11th Cir. 1991). Courser’s claims are a perfect example of such abusive and frivolous suits. He does not just fail to state a RICO claim-he fails spectacularly. Indeed, he has failed to plead a viable RICO claim for no less than 7 reasons. We will describe each failure succinctly. 1. Courser’s Shotgun Style Pleading is Legally Inadequate In these 50 some paragraphs, Plaintiff relies on generalizations, alleging actions by Defendants without even minimal specificity. Such “shotgun” pleading is insufficient to state a claim against each Defendant. See, e.g., Kerrigan v. ViSalus, Inc., 112 F. Supp. 3d 580, 601 (E.D. Mich. 2015) (“These ‘shotgun’ allegations of general misconduct by a group of thirty-one different Defendants are not sufficient to state RICO claims against each of them.”). 2. Plaintiff Fails to Even Allege the Elements Necessary to State a Claim Under §§ 1962(a) or (b) Subsection 1962(a) of RICO creates a cause of action for harm done by the use or investment of money earned from racketeering activity. See 18 U.S.C. § 1962(a). “[T]o state a claim under § 1962(a), a plaintiff must plead a specific injury to the plaintiff caused by the investment of income into the racketeering enterprise, distinct from any injuries caused by the predicate acts of racketeering.” Vemco, Inc. v. Camardella, 23 F.3d 129, 132 (6th Cir. 1994) Case 1:16-cv-01108-GJQ-PJG ECF No. 74 filed 11/18/16 PageID.1271 Page 17 of 24 13 22894224.5 (emphasis in original). Nowhere in Plaintiff’s Complaint does he allege, even in his usual conclusory fashion, that Livengood or the News received income from the alleged pattern of racketeering activity, or that they invested that income in the enterprise, or that Plaintiff was injured by any such investment. These failures are fatal to any claim under subsection (a). Section 1962(b) of RICO prohibits “any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.” 18 U.S.C. 1962(b); see also Advocacy Org. for Patients & Providers v. Auto Club Ins. Ass’n, 176 F.3d 315, 321-22 (6th Cir. 1999) (stating the elements of a claim under subsection b). Again, here, Plaintiff has completely failed to plead any facts to establish a violation of Subsection 1962(b). The Complaint contains no allegations that Livengood and the News-or any defendant-acquired or maintained an interest in or control of the alleged enterprise, let alone allegations of injury caused by such acquisition or maintenance of an interest in or control of the enterprise. He thus fails to state a claim under subsection (6). 3. Plaintiff Fails to State a Claim Under § 1962(c) To state a RICO claim under subsection (c), “a plaintiff must plead the following elements: (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” Ouwinga v. Benistar 419 Plan Services, Inc., 694 F.3d 783, 792 (6th Cir. 2012) (internal quotation marks omitted). Courser fails to allege “conduct of an enterprise.” In order to state a claim under § 1962(c), a plaintiff must allege that each defendant “conduct[ed] or participate[d], directly or indirectly in the conduct of” the alleged RICO enterprise’s activities. 18 U.S.C. 1962(c). To be liable, “defendants must have conducted or participated in the conduct of the enterprise’s affairs, not just their own affairs.” Ouwinga, 694 F.3d at 792 (emphasis in original). Here, the only Case 1:16-cv-01108-GJQ-PJG ECF No. 74 filed 11/18/16 PageID.1272 Page 18 of 24 14 22894224.5 allegations against the News and Livengood involve the conduct of their own affairs by reporting the news. Such ancillary conduct is insufficient to state a claim. Courser further fails to allege a “pattern of racketeering activity.” A “pattern of racketeering activity” consists of at least two predicate acts-certain offenses enumerated in 18 U.S.C. § 1961(1)-that occur within a ten-year period. See Moon v. Harrison Piping Supply, 465 F.3d 719, 723 (6th Cir.2006). The predicate acts must be related and amount to or pose a threat of continued criminal activity. See H.J., Inc. v. Nw. Bell Tele. Co., 492 U.S. 229 (1989). A plaintiff must make these allegations specific to each defendant by alleging that that particular defendant committed a pattern of predicate acts. Kerrigan, 112 F. Supp. 3d at 605 (emphasis in original). Plaintiff has failed to allege that the News and Livengood engaged in two predicate acts under § 1961(1). He devotes roughly 30 paragraphs to the predicate acts of “racketeering activity” supposedly engaged in by Defendants but does so only in generalities. See Complaint ¶¶ 963-992. The only predicate acts even remotely suggested to have been committed by the News and Livengood are violations of § 1985 and of Federal wiretapping and state eavesdropping statutes. But even if those allegations stated a claim (which they do not, for reasons stated above), they are not “predicate acts” as defined in § 1961(1). Finally, even if the § 1985 and the wiretapping allegations met the definition of the “predicate acts” (which they do not), they would lack the continuity necessary to establish a pattern of racketeering activity. “‘Continuity’ is both a closed- and open-ended concept, referring either to a closed period of repeated conduct, or to past conduct that by its nature projects into the future with a threat of repetition.” H.J., Inc., 492 U.S. at 241 (1989). Plaintiff alleges predicate acts lasting for less than one year, all aimed at the alleged objective of removing him Case 1:16-cv-01108-GJQ-PJG ECF No. 74 filed 11/18/16 PageID.1273 Page 19 of 24 15 22894224.5 from office. There are no allegations of a scheme beyond this narrow objective. Nor are there allegations to establish that the Defendants pose a threat to continue these alleged actions in the future, or that the Defendants regularly do business in the manner alleged by Plaintiff. Instead, Plaintiff simply claims that Defendants treated him differently. See, e.g., ¶¶ 54-55. In short, Plaintiff’s allegations “do[] not bear the markings of the ‘long-term criminal conduct’ about which ‘Congress was concerned’ when it enacted RICO.” Moon, 465 F.3d at 725-26 (quoting H.J., Inc., 492 U.S. at 242). Plaintiff has failed to allege the continuity necessary to state a RICO claim against the News or Livengood. 4. Plaintiff Fails to State a Claim against the News or Livengood for RICO Conspiracy Plaintiff further asserts liability against all Defendants for conspiracy to violate RICO under 18 U.S.C. § 1962(d). To state a claim for RICO conspiracy, one must “successfully allege all the elements of a RICO violation, as well as . . . the existence of an illicit agreement to violate the substantive RICO provision.” Heinrich v. Waiting Angels Adoption Servs., Inc., 668 F.3d 393, 411 (6th Cir.2012) (internal quotation marks omitted). Because, as discussed above, Plaintiff’s other RICO claims fail, the conspiracy claim fails with them. See id.; Craigshead v. EF Hutton & Co., 899 F.2d 485, 495 (6th Cir. 1989) (“Plaintiffs’ conspiracy claim cannot stand in light of the dismissal of their other RICO counts.”). Moreover, Plaintiff has failed to allege any illicit agreement by the News and Livengood sufficient to establish a RICO conspiracy. Thus, Count 16 should be dismissed. F. Plaintiff Fails to State a Claim against the News or Livengood in Count 19 Plaintiff, in Count 19, alleges Conspiracy and Concert of Actions against all Defendants. Under Michigan law, a claim of civil conspiracy requires proof of “(1) a concerted action (2) by a combination of two or more persons (3) to accomplish an unlawful purpose (4) or a lawful Case 1:16-cv-01108-GJQ-PJG ECF No. 74 filed 11/18/16 PageID.1274 Page 20 of 24 16 22894224.5 purpose by unlawful means.” Petroleum Enhancer, LLC v. Woodward, 690 F.3d 757, 769 (6th Cir. 2012) (quoting Mays v. Three Rivers Rubber Corp., 135 Mich. App. 42, 352 N.W.2d 339, 341 (1984)). “[A] claim for civil conspiracy may not exist in the air; rather, it is necessary to prove a separate, actionable, tort.” Id. Relatedly, a claim for concert of action requires the plaintiff to establish that defendants acted tortiously pursuant to a common design. See Cousineau v. Ford Motor Co., 140 Mich. App. 19, 32; 363 N.W.2d 721 (1985). Plaintiff has failed to state a claim under either theory against the News and Livengood. As detailed thoroughly above, Plaintiff has not pleaded facts sufficient to establish a single cause of action against the News and Livengood, nor have they pleaded any facts to suggest concerted action between the News and Livengood, on the one hand, and any of the other Defendants, on the other, beyond conclusory allegations of a conspiracy. Such allegations are insufficient to state a claim. See Keyes v. Deutsche Bank Nat’l Trust Co., 921 F. Supp. 2d 749, 763 (E.D. Mich. 2013) (dismissing claim for conspiracy plaintiffs failed to plead “any facts that would suggest that [defendant] has sought to accomplish an unlawful purpose through concerted action with [co-defendant], beyond conclusory allegations in the complaint that all of the defendants have conspired”). The civil conspiracy and concert of action claims should be dismissed. G. Plaintiff Fails to State a Claim against the News or Livengood in Count 21 In Count 21 (¶¶ 1050-1061) Plaintiff broadly asserts a claim for “declaratory relief” against all Defendants. Count 21 contains no allegations involving Livengood or the News. Instead, in Count 21, Plaintiff seeks declaratory relief overturning as unconstitutional-on their face and as applied to him-Article IV, § 16 of the Michigan Constitution and MCL § 750.505. Complaint ¶ 1055-1056. These statutes have no application to Livengood and the News, and this claim is based solely on the actions of Defendants Cotter, the House, Allard, and Graham. See ¶¶ 1050-1061. Count 21 should be dismissed as to Livengood and the News. Case 1:16-cv-01108-GJQ-PJG ECF No. 74 filed 11/18/16 PageID.1275 Page 21 of 24 17 22894224.5 H. Plaintiff Fails to State a Claim against the News or Livengood in Count 22 As in Count 21, in Count 22 (¶¶1062-1070) Plaintiff indiscriminately seeks relief from all Defendants but pleads allegations related only to a subset of Defendants: Cotter, the House, Allard, and Graham. See ¶¶ 1062-1070. On its face, Count 22 seeks injunctive relief in the form of an order to re-seat Plaintiff in the Michigan House of Representatives, an order to correct the record of the Michigan House of Representatives, and an order requiring indemnification by the House. See ¶¶ 1067, 1069, 1070. Count 22 states no allegations as to Livengood and the News, and it should be dismissed for failing to state a claim. CONCLUSION In his mind-numbing Complaint that is more political manifesto than pleading, Plaintiff grinds out a political conspiracy theory that blames everyone but himself for the considerable personal and legal problems he faces. Unsatisfied to limit his conspiracy to his political rivals, the Michigan State Police, the Michigan Attorney General, and others, Plaintiff attempts to sweep the Detroit News and its reporter, Chad Livengood, into the alleged conspiracy for doing nothing more than reporting about his blunders, missteps, and malfeasance. The claims against the News and Livengood are nothing short of preposterous, devoid completely of any legal or factual basis. This Court should dismiss all claims against the News and Livengood with prejudice and grant such other relief as it deems just. Respectfully submitted, HONIGMAN MILLER SCHWARTZ AND COHN LLP By: /s/ James E. Stewart James E. Stewart (P23254) Leonard M. Niehoff (P36695) Andrew Pauwels (P79167) 315 E. Eisenhower, Suite 100 Case 1:16-cv-01108-GJQ-PJG ECF No. 74 filed 11/18/16 PageID.1276 Page 22 of 24 18 22894224.5 Ann Arbor, Michigan 48108 (734) 418-4256 jstewart@honigman.com lniehoff@honigman.com apauwels@honigman.com Attorneys for Defendants The Detroit News and Chad Livengood Dated: November 18, 2016 Case 1:16-cv-01108-GJQ-PJG ECF No. 74 filed 11/18/16 PageID.1277 Page 23 of 24 19 22894224.5 CERTIFICATE OF SERVICE This is to certify that on November 18, 2016, a copy of the foregoing was electronically filed with the Clerk of the Court using the ECF system which will send notification of such filing to the attorneys of record. Respectfully submitted, HONIGMAN MILLER SCHWARTZ AND COHN LLP By: /s/ James E. Stewart James E. Stewart (P23254) Leonard M. Niehoff (P36695) Andrew Pauwels (P79167) 315 E. Eisenhower, Suite 100 Ann Arbor, Michigan 48108 (734) 418-4256 jstewart@honigman.com lniehoff@honigman.com apauwels@honigman.com Attorneys for Defendants The Detroit News and Chad Livengood Case 1:16-cv-01108-GJQ-PJG ECF No. 74 filed 11/18/16 PageID.1278 Page 24 of 24 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN TODD COURSER, Plaintiff, v. KEITH ALLARD; BENJAMIN GRAHAM; JOSHUA CLINE; JOSEPH GAMRAT; MICHIGAN HOUSE OF REPRESENTATIVES, KEVIN G. COTTER, in his official capacity as Speaker of the Michigan House of Representatives (District 99) and in his individual capacity; TIM L. BOWLIN, in his official capacity as Business Director/CFO and in his individual capacity; BROCK SWARTZLE, in his official capacity as Chief of Staff/General Counsel and in his individual capacity; NORM SAARI, in his official capacity as former Chief of Staff and in his individual capacity; EDWARD McBROOM, in his official capacity as Representative for District 108 and in his individual capacity; ANDREA LaFONTAINE, in her official capacity as Representative for District 32 and in her individual capacity; ROB VERHEULEN, in his official capacity as Representative for District 74 and in his individual capacity; HASSAN BEYDOUN, in his official capacity as legal counsel of the Michigan House of Representatives and in his individual capacity; KURT HEISE, in his official capacity as Representative for District 20 and in his individual capacity; DAVID HORR; VINCENT KRELL, RADISSON HOTELS INTERNATIONAL, INC.; RADISSON GROUP, INC. CARLSON REZIDOR HOTEL GROUP; CHAD LIVENGOOD, in his official capacity as a reporter for the Detroit News and in his individual capacity; THE DETROIT NEWS, INC.; the MICHIGAN STATE POLICE; KRAIG BRITVEC, in his official capacity as Detective with the Michigan State Police and in his individual capacity; JEREMY BREWER, in his official capacity as Detective with the Michigan State Police and in his individual capacity, Defendants. Case No.: 1:16-cv-01108-GJQ-PJG Hon. Gordon J. Quist INDEX OF EXHIBITS Case 1:16-cv-01108-GJQ-PJG ECF No. 74-1 filed 11/18/16 PageID.1279 Page 1 of 2 1 INDEX OF EXHIBITS A. Case Law B. August 7, 2015 News Report Case 1:16-cv-01108-GJQ-PJG ECF No. 74-1 filed 11/18/16 PageID.1280 Page 2 of 2 6512067.1 Exhibit A Case 1:16-cv-01108-GJQ-PJG ECF No. 74-2 filed 11/18/16 PageID.1281 Page 1 of 17 DMC Plumbing and Remodeling, LLC v. Fox News..., Not Reported in... 2012 WL 5906870 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 2012 WL 5906870 Only the Westlaw citation is currently available. United States District Court, E.D. Michigan, Southern Division. DMC PLUMBING AND REMODELING, LLC, David Campbell, and Heather Campbell, Plaintiffs, v. FOX NEWS NETWORK, LLC, New World Communications of Detroit, Inc., d/b/a WJBK-TV, City of Detroit, Steven Dolunt, Charles Flanagan, Julaney Jones, WJBK License, Inc., WJBK-TV, Inc., Andrea Isom, and John Doe, Defendants. No. 12-cv-12867. | Nov. 26, 2012. Attorneys and Law Firms Christopher J. Trainor, Shawn C. Cabot, Christopher Trainer and Associates, White Lake, MI, for Plaintiffs. Michael M. Muller, Detroit City Law Department, Detroit, MI, for Defendants. OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS (Dkt. No. 18) PAUL D. BORMAN, District Judge. *1 The Court has before it Defendants Fox News Network, LLC; WJBK License, Inc.; New World Communications of Detroit, Inc. 1 ; WJBK-TV, Inc.; and Andrea Isom's (the “WJBK Defendants”) 2 Motion to Dismiss, filed on August 9, 2012. (Dkt. No. 13.) Plaintiffs DMC Plumbing and Remodeling, Inc., David Campbell, and Heather Campbell (“Plaintiffs”), filed the Complaint in this matter on March 30, 2012, in state court, against the WJKB Defendants as well as the City of Detroit, Officer Steve Dolunt, Officer Charles Flanagan, Officer Julaney Jones, and other unnamed Defendants. The Complaint alleges the following 14 Counts: 1 New World Communications of Detroit, Inc., is a wholly owned subsidiary of Fox Television Stations, Inc., not the Fox News Network, LLC. It therefore appears that Defendant Fox News Network, LLC was erroneously named in the Complaint. 2 Defendants assert that Defendant WJBK Licensee, Inc., and WJBK-TV, Inc., were erroneously named in the Complaint, because they are not corporate entities. (Defs.' Mot. 1, n. 1.) Plaintiffs do not address this assertion in their Response. Count I: Defamation; Count II: Interference with Advantageous Contractual Relations; Count III: Interference with Prospective Business Advantage; Count IV: Malicious Prosecution; Count V: Intentional Infliction of Emotional Distress; Count VI: Gross Negligence; Count VII: Negligence; Count VIII: Violation of the Fourth Amendment, 42 U.S.C. § 1983 Unreasonable Seizure; Count IX: Violation of the Fourth Amendment, 42 U.S.C. § 1983 Malicious Prosecution; Count X: 42 U.S.C. § 1983 Fourteenth Amendment Procedural Due Process Violations; Count XI: 42 U.S.C. § 1983 Violation of the Fourteenth Amendment Substantive Due Process; Count XII: 42 U.S.C. § 1983 Violation of the First Amendment; Count XIII: City of Detroit's Constitutional Violations; and Count XIV: Loss of Consortium as to Plaintiff Heather Campbell. (Compl.7-21) Defendants filed a Notice of Removal on June 28, 2012. 3 (Dkt. No. 1.) 3 The WJBK Defendants filed the Notice of Removal in this action. Defendant City of Detroit joined in the removal on July 3, 2012. (Dkt. No. 2.) Although there is no conspiracy claim alleged in the Complaint, ase 1:16-cv-01108-GJQ-PJG ECF No. 74-2 filed 11/18/16 PageID.1282 Page 2 of 17 DMC Plumbing and Remodeling, LLC v. Fox News..., Not Reported in... 2012 WL 5906870 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 the WJBK Defendants asserted that federal question jurisdiction existed in this Court based on Plaintiffs' claims brought under 42 U.S.C. § 1983. The WJBK Defendants, as private entities, are generally not liable under § 1983. However, Plaintiffs' counsel conceded at the hearing on this matter that the Complaint alleges that the WJBK Defendants were acting in concert with Defendant City of Detroit, and that they should also be liable for § 1983 claims. The WJBK Defendants' removal based on federal question jurisdiction was therefore proper. On September 7, 2012, Plaintiffs filed a Response to the WJBK Defendants' Motion. (Dkt. No. 18.) On September 11, 2012, the WJBK Defendants filed a Reply. (Dkt.No.19.) On October 10, 2012, the WJBK Defendants filed a Supplemental Brief in Support of their Motion to Dismiss. (Dkt. No. 26.) The Court held a hearing on October 19, 2012. For the reasons stated below, the Court will GRANT the WJBK Defendants' Motion. I. BACKGROUND The allegations in the Complaint are assumed to be true for purposes of the instant motion to dismiss. See Tucker v. Middleburg-Legacy Place, 539 F.3d 545, 549 (6th Cir.2008). In early 2011, Plaintiff DMC Plumbing and Remodeling, Inc. (“DMC”) performed services on various properties owned by Five Brothers Mortgage Company Services and Securing Inc. (“Five Brothers”). These services included demolition of, and removing debris from, the Five Brothers properties. Plaintiff DMC was responsible for hauling over 100,000 pounds of debris from the properties to the dump in the first three months of 2011. On March 31, 2011, Plaintiff DMC dumped branches at a property located at 19721 Joann Street in Detroit, Michigan, (the “Joann Street property”) which was owned by Five Brothers. Plaintiff DMC alleges that a nearby dump had refused to accept the branches, and Plaintiff DMC planned to temporarily store the branches at the Joann Street property and take them to a burn pit in Waterford, Michigan, later the same day. *2 However, while Plaintiff DMC's employees were unloading the branches at the Joann Street property, Defendant Julaney Jones, a Detroit Police Officer, arrived and accused Plaintiff DMC's employees of illegal dumping and blight violations. Defendant Jones then seized and impounded Plaintiff DMCs work vehicles. Plaintiffs allege that Defendant City of Detroit and unnamed Detroit Police Department officers informed the WJBK Defendants that Plaintiff DMC was illegally dumping and causing blight violations in the city. Plaintiffs claim that Defendants Charles Flanagan, Julaney Jones, Steve Dolunt, and other Detroit Police officers, then misdirected the WJBK Defendants to a property nearby the Joann Street property, which contained various piles of debris that had not been dumped there by Plaintiff DMC. The WJBK Defendants then video recorded the debris on this property as part of a televised news story on illegal dumping in the City of Detroit. Plaintiffs allege that representatives from the WJBK Defendants visited Plaintiff David Campbell, who showed the WJBK Defendants the burn pit with the pile of branches that had been removed from the Joann Street property. On April 1, 2011, the WJBK Defendants broadcast a news story claiming that the debris on the property that Defendants Flanagan, Jones, and Dolunt had shown them had been left there by Plaintiff DMC. Plaintiffs allege that the news story also erroneously reported that Plaintiff DMC was known for illegal dumping activities in the City of Detroit. Plaintiffs further allege that, sometime after the April 1, 2011 news broadcast, “[v]arious blight charges against [them] were dismissed.” (Compl.¶ 48.) However, on May 12, 2011, Plaintiffs' employee, Jayson Andrew Blevins, was found responsible and fined $1,000 for illegal dumping at 19721 Joann Street in Detroit on March 31, 2011. (Defs.' Supp. Mem., Ex. A, Order of Judgment.) Plaintiffs assert that they have been defamed and lost business revenue as a result of allegedly false statements contained in the news story broadcast by the WJBK Defendants. Now before the Court is the WJBK Defendants' Motion to Dismiss Plaintiffs' defamation and other tort claims based on the April 1, 2011 news broadcast, brought pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(c). ase 1:16-cv-01108-GJQ-PJG ECF No. 74-2 filed 11/18/16 PageID.1283 Page 3 of 17 DMC Plumbing and Remodeling, LLC v. Fox News..., Not Reported in... 2012 WL 5906870 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 III. STANDARD OF REVIEW The same standard of review applies to motions for judgment on the pleadings under Rule 12(c) and motions claiming failure to state a claim pursuant to Rule 12(b)(6). Tucker, 539 F.3d at 549. The Court takes all well-pleaded allegations as true, and the motions are “appropriately granted when no material issue of fact exists and the party making the motion is entitled to judgment as a matter of law.” Id. (internal quotations and citation omitted). Put another way, the motions test the complaint for sufficient factual matter, which the Court takes as true and construes in a light most favorable to the plaintiff, to state a plausible claim for relief. Courie v. Alcoa Wheel & Forged Products, 577 F.3d 625, 629 (6th Cir.2009). IV. ANALYSIS A. Defendants' Request for Early Summary Judgment *3 As an initial matter, the Court notes that the WJBK Defendants cite case law in their Motion supporting the Court's consideration of early summary judgment motions in First Amendment cases. 4 (Defs.' Mot. 4- 5.) See Nichols v. Moore, 396 F.Supp.2d 783, 787 (E.D.Mich.2005) (noting that “[s]ummary judgment is particularly appropriate at an early stage in cases where claims of libel or invasion of privacy are made against publications dealing with matters of public interest and concern.”). However, Defendants do not rely on Federal Rule of Civil Procedure 56(c), and in fact argue that the Court can consider the evidence presented “without converting this motion to one for summary judgment under Rule 56.” (Defs.' Mot. 7.) 4 The WJBK Defendants rely primarily on state law “summary disposition” cases brought pursuant to Michigan Court Rule 2.116(C) (10). “A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of the complaint.” Comerica Bank v. Cohen, 291 Mich.App. 40, 45, 805 N.W.2d 544 (2010). In reviewing these motions, Michigan state courts apply the same standard that applies to motions brought pursuant to Federal Rule of Civil Procedure 56: “Summary disposition is appropriate if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law.” Id. (quoting Latham v. Barton Malow Co., 480 Mich. 105, 111, 746 N.W.2d 868 (2008)) (emphasis added). See also Herendeen v. Mich. State Police, 39 F.Supp.2d 899, 902 n. 1 (W.D.Mich.1999) (noting that “[s]ummary disposition is the equivalent of summary judgment under the Federal Rules of Civil Procedure.”). As noted supra, the Court construes the WJBK Defendants' Motion as one brought pursuant to Rules 12(b)(6) and 12(c). Accordingly, the Court will limit its consideration to the pleadings and materials permitted under those rules, and will apply the legal standards under those rules. B. Defendants' Motion for Judgment on the Pleadings/Failure to State a Claim The WJBK Defendants argue that any alleged false statements made during the April 1, 2011 news broadcast are protected under Michigan's statutory “fair reports” privilege, which provides, in pertinent part, as follows: Damages shall not be awarded in a libel action for the publication or broadcast of a fair and true report of matters of public record, a public and official proceeding, or of a governmental notice, announcement, written or recorded report or record generally available to the public, or act or action of a public body, or for a heading of the report which is a fair and true headnote of the report. Mich. Comp. Laws § 600.2911(3). 1. Consideration of the April 1, 2011 News Broadcast The WJBK Defendants assert that the Court may consider a DVD copy of the April 1, 2011 news broadcast. (Defs.' Mot. Ex. A, News Broadcast.) In reviewing a motion brought pursuant to Rules 12(b) (6) and/or 12(c), the Court “may consider the Complaint and any exhibits attached thereto, public records, items appearing in the record of the case and exhibits attached to the defendant's motion to dismiss so long as they are referred to in the Complaint and are central to the claims contained therein.” Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir.2008). Although the ase 1:16-cv-01108-GJQ-PJG ECF No. 74-2 filed 11/18/16 PageID.1284 Page 4 of 17 DMC Plumbing and Remodeling, LLC v. Fox News..., Not Reported in... 2012 WL 5906870 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 Complaint did not include the DVD as an exhibit, the Complaint refers to the April 1, 2011 news broadcast, and the broadcast is central to Plaintiffs' claims for defamation. (Compl.¶¶ 38-40.) Accordingly, the Court will consider it in ruling on Defendants' motion to dismiss. 2. Applicability of Mich. Comp. Laws § 600.2911(3) The WJBK Defendants argue that any allegedly false statements made in the April 1, 2011 news broadcast are attributable to official statements of City of Detroit officials, and are thus covered under the fair reports privilege. *4 Michigan courts have held that “under the plain language of § 2911(3), the privilege encompasses newspaper articles based upon police reports of criminal incidents.” Northland Wheels Roller Skating Ctr., Inc. v. Detroit Free Press, Inc., 213 Mich.App. 317, 326, 539 N.W.2d 774 (1995). Courts have interpreted the privilege broadly, extending it to more than just official police statements. See id. at 327, 539 N.W.2d 774 (noting “we believe the statutory privilege was drafted to incorporate much more than press releases.”). The allegedly defamatory statements regarding Plaintiff DMC are attributed to police statements in the April 1, 2011 broadcast. In the news report, Defendant Andrea Isom states as follows: • “Detroit police say the two guys were employees of DMC Plumbing and Remodeling in Waterford.” (News Broadcast at 01:53.) • “According to cops, the two workers were ticketed and their trucks towed away.” (News Broadcast at 01:59.) • “You know, police asked those guys why they decided to dump that stuff in Detroit, and they said because their boss told them to.” (News Broadcast at 02:38.) Plaintiffs argue that § 2911(3) should not apply to these statements because they were not attributed to any public record or written official police report. Although Defendant Isom's above statements were not based on an official report or record available to the public, they are covered by the fair reports privilege. In McCracken v. Evening News Association, 3 Mich.App. 32, 141 N.W.2d 694 (1966), the plaintiff argued that “information gathered by defendant's reporter, and thereafter published by defendant, was obtained from informal statements made by the assistant prosecutor ... prior to the issuance of the warrant[,]” and was therefore not covered by § 2911(3), because it “was not gathered from a public and official proceeding....” Id. at 38, 141 N.W.2d 694. The Michigan Court of Appeals disagreed, stating as follows: The fact that the reporter herein relied on the word of another as to the nature of the complaint and warrant is immaterial. The statute does not command the reporter to obtain his information from the official court records. Id. See also Nichols, 396 F.Supp.2d at 789 (quoting McCracken and noting “that Defendant is not required to consult the public record before making his statements, it is sufficient that the public record is consistent with them.”). Accordingly, the statements in the April 1, 2011 news broadcast do fit within the statutory privilege provided under § 2911(3). 3. Substantial Truth Doctrine In evaluating whether a news publication is immune under § 2911(3), the Court must determine “[i]f the gist of [the] article is substantially accurate....” Butcher v. S.E.M. Newspapers, Inc., 190 Mich.App. 309, 312, 475 N.W.2d 380 (1991). Whether a privilege renders a defendant immune from liability is a question of law determined by the Court. Northland Wheels, 213 Mich.App. at 324, 539 N.W.2d 774. In Northland Wheels, the plaintiff sued the defendant newspaper for libel after the newspaper published an article entitled “Teen shot outside roller rink was caught in others' dispute.” Id. at 319, 539 N.W.2d 774. The article reported that a teenager died, and another teenager was wounded, as a result of a drive-by shooting “outside of a northwest Detroit roller skating rink [.]” Id. The plaintiff alleged that the article was not a fair and accurate report of the police department's news release. Id. at 320, 539 N.W.2d 774. The trial court disagreed, finding “that although the shooting did not occur in front of plaintiff's business, the police records supported the fact that the shooting victims were congregating in plaintiff's parking ase 1:16-cv-01108-GJQ-PJG ECF No. 74-2 filed 11/18/16 PageID.1285 Page 5 of 17 DMC Plumbing and Remodeling, LLC v. Fox News..., Not Reported in... 2012 WL 5906870 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 lot as they left the skating rink.” Id. at 321-22, 539 N.W.2d 774. The trial court also noted that a witness who was quoted in the newspaper article “focused on plaintiff's rink.” Id. at 322, 539 N.W.2d 774. *5 The Michigan Court of Appeals affirmed, holding that “plaintiff has failed to establish material falsity under the substantial truth doctrine.” Northland Wheels, 213 Mich.App. at 327, 539 N.W.2d 774. The appeals court further stated as follows: Although defendants published articles that stated that as the result of an argument that began inside plaintiff's skating rink, a teenager was slain in front of plaintiff's skating rink as patrons were leaving the rink, we do not believe that a reader would be affected by this saddening news any differently had the article specified that (1) the victims were shot outside the Woodland Arms Apartment, which is located at 22045 West Eight Mile, (2) when the shooting occurred, the victims and other teens were leaving the parking lot in front of plaintiff's skating rink, located two hundred yards away at 22311 West Eight Mile, and (3) as plaintiff alleges, nothing occurred inside the rink that contributed to the shooting. These alleged inaccuracies are immaterial under the substantial truth doctrine because the literal truth produces the same effect in the mind of the reader. The literal truth is that another teenager senselessly was murdered in a Detroit parking lot during a drive- by shooting. Exactly where, when, or why is irrelevant to the “gist” of the story. Id. at 327-28, 539 N.W.2d 774. The instant case fits within the Northland Wheels analysis. Police records and statements on April 1, 2011, would have indicated that Plaintiff DMC was fined for illegal dumping and blight violations, and that its trucks were impounded by City of Detroit police. Indeed, the May 12, 2011 Order of Judgment fining Plaintiffs' employee for illegal dumping, while not in the public record at the time of the broadcast at issue, still undercuts Plaintiffs' argument that the illegal dumping charges referenced in the April 1, 2011 broadcast were materially false. Plaintiffs assert that the news broadcast is not substantially true because (1) it falsely claims that Plaintiff DMC was the cause of the illegal dumping shown in the video footage; (2) the broadcast shows Plaintiff DMC's truck in an impound lot “with a load still in it,” falsely implying that Plaintiffs were going to dump that load illegally (News Broadcast at 02:12), and (3) Defendant Adrea Isom states that she talked to “the boss” at Plaintiff DMC, Plaintiff David Campbell, but never reported what he said-that he was only temporarily storing branches at the Joann Street property (News Broadcast at 02:45). However, the fact that Plaintiff DMC was ticketed for illegally dumping branches, rather than for the debris shown in the news broadcast, “is an inaccuracy that does not alter the complexion of the charge and would have no different effect on the reader than that which the literal truth would produce....” Fisher v. Detroit Free Press, Inc., 158 Mich.App. 409, 414, 404 N.W.2d 765 (1987). Plaintiffs also argue that the broadcast falsely states that Plaintiff DMC had been illegally dumping in the City of Detroit “for quite some time.” (News Broadcast at 00:25). This comment was made by the WJBK Defendants' female news anchor, who Plaintiffs have not named as a defendant, during the transition to Defendant Andrea Isom's news report. The Court finds that this statement is a minor inaccuracy that does not, by itself, alter the substantial truth of the April 1, 2011 news broadcast. In Rouch v. Enquirer & News of Battle Creek Michigan, 440 Mich. 238, 487 N.W.2d 205 (1992), the Michigan Supreme Court noted that “[i]t is sufficient for the defendant to justify so much of the defamatory matter as constitutes the sting of the charge, and it is unnecessary to repeat and justify every word of the alleged defamatory matter, so long as the substance of the libelous charge be justified....” Id. at 259, 487 N.W.2d 205 (citation omitted). Furthermore, a complaining witness featured in the April 1, 2011 news broadcast stated that he had previously witnessed illegal dumping in the area (News Broadcast at 01:15), and that it was “about time” somebody was ticketed. (News Broadcast at 02:23.) Thus, there was some basis for the news anchor's statement. See McCracken, 3 Mich.App. at 38, 141 N.W.2d 694 (holding that “[t]he fact ase 1:16-cv-01108-GJQ-PJG ECF No. 74-2 filed 11/18/16 PageID.1286 Page 6 of 17 DMC Plumbing and Remodeling, LLC v. Fox News..., Not Reported in... 2012 WL 5906870 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 that the reporter herein relied on the word of another as to the nature of the complaint and warrant is immaterial.”). *6 Accordingly, the Court finds that the April 1, 2011 news broadcast is a “substantially true” representation of the police records and statements surrounding Plaintiff DMC's charges of illegal dumping and blight violations at the time of the broadcast. Taking the allegations in the Complaint as true and viewing them in a light most favorable to Plaintiffs, the WJBK Defendants are thus entitled to judgment as a matter of law, because the April 1, 2011 news broadcast is protected under Michigan's fair reports privilege. C. Claims for Tortious Interference and Emotional Distress The WJBK Defendants argue that Plaintiffs' claims based on tortious interference and emotional distress must fail because they are merely alternative theories contingent on the defamation claim. The Court agrees. The basis for all liability against the WJBK Defendants, as alleged in the Complaint, arises out of the allegedly false and defamatory statements and depictions contained in the April 1, 2011 news broadcast. However, if this broadcast is covered under the fair reports privilege, as discussed supra, then Plaintiffs' claims for tortious interference and emotional distress must also be dismissed. See Lakeshore Cmty. Hosp., Inc. v. Perry, 212 Mich.App. 396, 401, 538 N.W.2d 24 (1995) (“As with defamation actions, where the conduct allegedly causing the business interference is a defendant's utterance of negative statements concerning a plaintiff, privileged speech is a defense.”); Nichols, 396 F.Supp.2d at 798 (“The Court finds that Plaintiff's ... Emotional Distress claims are subject to the same First Amendment limitations as Plaintiff's defamation claim.”). In addition, although not raised by the WJBK Defendants, the same reasoning applies to Plaintiffs' negligence claim (Count VII). See Royal Palace Homes, 197 Mich.App. 48, 53, 495 N.W.2d 392 (noting that “[l]iability may not be imposed on a media defendant for facts about public affairs it publishes accurately and without material omissions.”). Plaintiffs' tortious interference, emotional distress and negligence claims against the WJBK Defendants will therefore be dismissed. D. Request to Amend At the end of their Response, Plaintiffs argue that they should be given leave to amend the Complaint pursuant to Rule 15(a). Plaintiffs have not filed a separate motion pursuant to Rule 15(a), nor have they attached a proposed amended Complaint pursuant to Local Rule 15.1. Because the allegedly defamatory statements in the April 1, 2011 news broadcast are substantially true and covered by Michigan's fair reports privilege, Plaintiffs cannot allege any facts that would support a claim against the WJBK Defendants. Plaintiffs' request to amend will therefore be denied as futile. Riverview Health Institute LLC v. Medical Mutual of Ohio, 601 F.3d 505, 520 (6th Cir.2010) (“A proposed amendment is futile if the amendment could not withstand a Rule 12(b)(6) motion to dismiss.” (citation omitted)). V. CONCLUSION *7 For the reasons stated above, the Court will GRANT the WJBK Defendants' Motion to Dismiss. The remaining Defendants are the City of Detroit, Steve Dolunt, Charles Flanagan, Julaney Jones, and the other Unnamed Defendants. IT IS SO ORDERED. All Citations Not Reported in F.Supp.2d, 2012 WL 5906870 End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. ase 1:16-cv-01108-GJQ-PJG ECF No. 74-2 filed 11/18/16 PageID.1287 Page 7 of 17 Hazime v. Fox TV Stations, Inc., Not Reported in F.Supp.2d (2013) 2013 WL 4483485 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 2013 WL 4483485 Only the Westlaw citation is currently available. United States District Court, E.D. Michigan, Southern Division. Hussein HAZIME, et al., Plaintiffs, v. FOX TV STATIONS, INC., Defendant. No. 12-15072. | Aug. 19, 2013. Attorneys and Law Firms Hayssam A. El Kodssi, Hayssam El Kodssi Assoc., Dearborn, MI, for Plaintiffs. James E. Stewart, Honigman Miller Schwartz and Cohn LLP, Detroit, MI, Leonard M. Niehoff, Ann Arbor, MI, for Defendant. OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS [13] NANCY G. EDMUNDS, District Judge. *1 At a hearing held on August 14, 2013, this matter came before the Court on Defendant's 1 Rule 12(b)(6) motion to dismiss. Three individuals and three companies- Hussein Hazime, Rima Abou-Alayoui, Hassan Hazime, Hassan's Shop, Inc., Timeless Mattresses LLC, and M & R Appliance and Mattresses LLC-filed this Complaint on November 15, 2012. Plaintiffs' complaint alleges eight claims for relief. The first, second, fourth, and fifth claims for relief are expressly labeled “defamation” claims. (See Pls.' Compl.) The sixth claim is styled as a “tort/ negligence” claim but alleges defamation. (Id., ¶ 115. The seventh claim is styled as “injurious falsehood” but merely re-alleges the preceding claims for defamation and seeks attorney fees and costs. (Id., ¶ 119 .) The eighth claim is styled “Injurious False hood/To rtio us Interference with an advantageous economic relationship and tortious interference with an economic relationship- Business defamation/defamation per se” and makes allegations suggesting that this claim also includes a claim of defamation. (Id., ¶¶ 121-129.) Defendant's motion is GRANTED. All claims brought by three Plaintiffs, Hussein Hazime, M & R Appliance and Mattresses LLC, and Rima Abou-Alayoui, are dismissed because Plaintiffs do not and cannot allege that any statements were made by Defendant “of and concerning” these three Plaintiffs that would give rise to the claims asserted. All claims brought by the remaining Plaintiffs against Defendant are also dismissed. Plaintiffs fail to defend and thus waive all but their defamation by implication and interference with contractual relations claims. As to those two remaining claims, Plaintiffs have not and cannot establish that Defendant WJBK's broadcasts contain a materially false implication; and because that defamation claim fails, Plaintiffs' related tortious interference claim also fails. 1 Defendant informs the Court that New World Communications of Detroit, Inc. (“NWC”) owns and operates the Detroit area television station WJBK (also known as “Fox 2”) and the station's website,myfoxdetroit.com, which prepared and broadcast the two Reports at issue in this litigation. Defendant further advises the Court that NWC was erroneously named by Plaintiffs as “FOX TV Stations, Inc., d/b/a Fox 2 News and WJBK.” Plaintiffs apparently were referring to Fox Television Stations, Inc., which is a sister corporation of NWC. Nonetheless, defense counsel brings this motion on behalf of the erroneously named Defendant Fox Television Stations, Inc. because Plaintiffs' claims, whether brought against FTS or NWC are subject to dismissal under Federal Rule of Civil Procedure 12(b) (6). I. Facts Plaintiffs' Complaint alleges that WJBK broadcast two reports that give rise to their claims. The First Report, which Plaintiffs describe as discussing their “refurnished mattress business,” aired on July 25, 2012 as part of Fox 2's evening news program and also ran on Fox 2's website. (Pls.' Compl., ¶¶ 18-19.) The Second Report is described as a Fox 2 News “follow-up” story that related to Plaintiffs' businesses. (Id., ¶¶ 30-33.) Because the allegations in Plaintiffs' Complaint are based upon and reference the First and Second Report and because these two reports are central to Plaintiffs' claims, this Court may consider them on Defendant's Rule 12(b)(6) motion to dismiss without converting that motion into one for summary judgment. See Greenberg v. Life Ins. Co. of Va., 177 F.3d 507, 514 (6th Cir.1999); Lacko v. Mercy Hospital, 829 F.Supp.2d 543, 547 (E.D.Mich.2011) Case 1:16-cv-01108-GJQ-PJG ECF No. 74-2 filed 11/18/16 PageID.1288 Page 8 of 17 Hazime v. Fox TV Stations, Inc., Not Reported in F.Supp.2d (2013) 2013 WL 4483485 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 (applying Greenberg ); DMC Plumbing & Remodeling, LLC v. Fox News Network, LLC, No. 12-cv-12867, 2012 WL 5906870, at *3 (E.D.Mich. Nov.26, 2012) (ruling in a defamation case that, because “the Complaint refers to the April 1, 2011 news broadcast, and the broadcast is central to Plaintiffs' claims for defamation,” the DVD of that broadcast would be considered by the Court in ruling on the defendant's motion to dismiss). *2 The following facts are derived from the Court's review of the DVD containing the First and Second Reports that are central to Plaintiffs' claims alleging defamation. (Def.'s Mot., Ex. A, DVD.) The First Report, a “Problem Solver” segment styled as “Dirty Little Mattress Secret Uncovered,” was aired on July 25, 2012 and begins with an introduction by WJBK anchors who comment about “mattresses that are made to look brand new but what's inside might keep you up at night” and how investigative reporter Rob Wolchek “pulls the covers off” and shows what goes on inside a local mattress factory and what he finds out “is no bed of roses.” Then, Wolchek introduces the story by discussing the various things in life that occur on beds, that people may not know what happens when you get rid of an old bed, but claims that he does know. As Wolchek narrates, the screen reflects what he is describing, stacks of used and dirty old mattresses, stained and ripped, piled to the ceiling, and he comments “who'd sleep on one of those? Well, guess what, you might be sleeping on one tonight.” Wolchek next briefly interviews a consumer, later identified as “Del,” who talks about how the bed she purchased looked “new” but that was “the trick of it” because “they” changed the top and stuffed “it” back. The First Report then moves to a scene of an undercover reporter purchasing a mattress from Plaintiff Hassan's Shop, Inc. (“Hassan's Shop”) while Wolchek narrates, stating that “We buy a mattress and uncover a dirty little secret of the mattress biz.” The undercover reporter purchasing the mattress asks, “This is new, right?” The salesman responds, “Yeah, refurbished.” Next, the camera shows Wolchek cutting open the new cover on the outside of the mattress, while another man (later identified as a Wayne County Environmental Health Department inspector) shines a flashlight on the inside revealing old, stained bedding with a cigarette burn hole. Wolchek narrates that mattresses are sold right here in Detroit and built in a factory in Livonia as the camera shows the outside of Plaintiff Timeless Mattresses LLC (“Timeless Mattresses”) that supplies the mattresses to Plaintiff Hassan's Shop. Wolchek, now on camera, asks a sales representative, later identified as Marcus, why they are using “old fabric” inside the mattresses and Marcus denies that they are doing so saying, “We're not using old fabric, sir.” Wolchek responds, “Dude, look.” The camera then shows the inside of the mattress purchased from Plaintiff Hassan's Shop, and then dirty and torn mattresses stacked high to the ceiling at the factory, and finally Marcus showing Wolchek around the factory. Wolchek comments, “After seeing this story today, you might be waking up on the wrong side of the bed tomorrow.” The next scene is Wolchek interviewing a woman named Jonita who was formerly employed by Hassan's Shop and states that “they” are not good beds. Wolchek comments that this store advertises that its beds are custom made, and the interview with Jonita is punctuated with TV advertisements of Plaintiff Hassan's Shop which repeatedly promote its beds as “custom made.” Wolchek comments that “custom made is usually good but Jonita says, ‘not in this case.’ ” Jonita is then shown commenting that the beds are recovered and not completely stripped down; that the mattresses were not really stripped down all the way, but were half-stripped with new covering put over “the dirty.” *3 As the next scene begins, Wolchek comments that, “the custom made beds at Hassan's Shop fooled Rober.” As Wolchek asks “did he tell you they were new beds, the camera shows customer Rober responding, “yes, brand new bed.” Upon further questioning by Wolchek, Rober acknowledges that it occurred to him later that it might be refurbished because it caved in too fast. Wolchek reports that Rober, dissatisfied with the bed's quality, returned his mattress to Plaintiff Hassan's Shop and received another custom made mattress. Wolchek then reports that Del also took her mattress back because she says it was full of bed bugs. The camera then shows Del saying, “They were coming out from under the box spring lining of the bed.” Wolchek narrates that “Del was given another bed and guess what?” The camera once again shows Del who says, “Bed bugs was in this Case 1:16-cv-01108-GJQ-PJG ECF No. 74-2 filed 11/18/16 PageID.1289 Page 9 of 17 Hazime v. Fox TV Stations, Inc., Not Reported in F.Supp.2d (2013) 2013 WL 4483485 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 one too.” Wolchek states that “Now Del sleeps with the plastic still on her custom made bed,” as the camera shows Del's mattresses with the plastic wrap still on. Wolchek narrates “she says she was tricked.” And, the camera shows Wolchek interviewing Del who says “They was supposed to be, from my knowledge, new beds, but come to find out they wasn't.” The First Report returns to the portion of the story where the undercover reporter purchases a “custom made” mattress from Hassan's Shop. Viewers are shown Wolchek back at the station unwrapping the plastic covering and cutting into the custom made mattress to see what is inside. The camera focuses on the mattress tags. There is a white tag on top that largely covers the yellow tag underneath it. The only language visible on the yellow tag from underneath the white tag is the name “Timeless Mattresses” and its Livonia address. Wolchek comments that both tags are under the plastic, the white tag is prominently displayed but doesn't reveal that second hand materials are used. The yellow tag does reveal this information but is visible only if you lift up the white tag after removing the plastic. The camera next shows Wolchek tearing open the mattress. He identifies a Wayne County Environmental Health Department inspector who is observing Wolchek as he cuts into the mattress from Hassan's Shop, and both examine the mattress which reveals the presence of old, stained bedding materials. Wolchek and the inspector comment on the presence of a lot of new foam padding but also note that the guts of the mattress contained used bedding. The camera shows old and used bedding materials from inside the mattress. Wolchek then comments about the good news/bad news from his inspection: “The good news is there are no bed bugs” but the inspector from the Health Department says that mixing new bedding and old bedding isn't something he'd recommend. The inspector is then shown on camera saying that bed bugs are hitchhikers and travelers; that's how they get around; and they can be transported from one facility or site to another, even inside a refurbished mattress like the one shown on the camera. *4 Wolchek narrates again as the camera shows him going to Hassan's Shop to speak with Hassan, the owner, and stating his intent to show him what his investigation revealed. On camera, Hassan denies that he has ever had a complaint from any customer. The camera cuts away and Wolchek is heard saying, “What about Del and Rober?” Next, as Wolchek narrates and the camera shows, Marcus gives a tour of Plaintiff Timeless Mattresses' factory -the factory where Hassan's Shop gets the mattresses it sells. The camera shows piles of dirty mattresses in close proximity to mattresses being rebuilt. Marcus tells Wolchek that before they bring the old mattresses in, they inspect them and spray them, then bring them in and strip them down, that basically, only the spring system in the old mattress remains. Marcus asks Wolchek, “You think bedbugs are gonna live in a spring system?” The camera then shows the stacks of old and unstripped mattresses in the same vicinity as the new material and Wolchek narrates that Hassan's Shop buys its mattresses from this shop. Next, it shows Marcus conceding to Wolchek that the factory does sometimes use “old product, old stuff.” As Wolchek states in his narrative and replays for the viewer, this statement contradicts Marcus's earlier statement that they don't use old fabric. The final segment of the First Report has Wolchek commenting off camera, “So, whether you're shopping at Hassan's or at an upscale store in Livonia, you might get a mattress like this,” and the camera shows the torn- apart mattress with the old and new materials inside that was purchased from Hassan's Shop by the undercover reporter. Wolchek then comments, “And, if you're looking for that yellow tag that says “Second Hand Materials,” you might have to look a little harder.” The camera then shows Wolchek inside a Timeless Mattresses store in Livonia asking to see the labels on the mattresses. A bed is pulled away from a wall, showing that the mattresses have two tags, a white on top of a yellow, and both are covered by plastic. Wolchek comments off camera, “Not exactly really visible.” As shown earlier in the First Report, the top, white tag is visible to the customer under the plastic and states that the bed is manufactured by Timeless Mattresses in Livonia and that it conforms to federal standards of flammability. The second, yellow tag is placed directly under the white tag and the yellow tag's language, “Second Hand Materials,” is completely covered by the white tag. Back in the studio, Wolchek concludes by saying that he spoke with the manager of the Timeless Mattresses factory who said that they get their mattresses from companies that collect old mattresses but he didn't really say where Case 1:16-cv-01108-GJQ-PJG ECF No. 74-2 filed 11/18/16 PageID.1290 Page 10 of 17 Hazime v. Fox TV Stations, Inc., Not Reported in F.Supp.2d (2013) 2013 WL 4483485 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 those companies get the old mattresses; and tells viewers that all of this is perfectly legal but “kind of a gross thing;” and in response to an anchor's comment that he had just purchased a mattress from a major department store, Wolchek cautions that, although a mattress might look brand new, consumers should check the tags on the mattress to see if it contains second hand materials because “you never know.” *5 The Second Report was aired on August 13, 2012 with two different Fox 2 News anchors introducing a follow- up on Wolchek's original story. One anchor describes the segment as one about a Detroit-area mother who thought she was buying brand new beds for her family but she says the new-looking mattresses had bed bugs in them; the other anchor then comments, “It turns out they weren't new mattresses, they were old beds covered with new material. But there is a happy ending to this story.” Then “problem solver” Rob Wolchek is introduced. Wolchek begins by identifying the Detroit mother as “Del” and the victim in his earlier story about refurbished beds and commenting that viewers would be surprised how many stores sell them, “but not one mattress man-his name is Jeff-and after seeing Del's story he wanted to make sure that Del's family went to bed at night knowing that their beds were brand new inside and out.” The camera then shows Del with her children rollicking on a new mattress with Wolchek commenting that these children are happy because they're getting new beds courtesy of Jeff Scheuer of Mattresses To Go and Del expressing her gratitude. While the camera shows Del and the white and yellow tags from the First Report, Wolchek narrates that Del was featured in a story he did a few weeks earlier that exposed “a dirty little secret” about the mattress business- they're called refurbished mattresses. Wolchek explains that Del purchased three mattresses from Hassan's Shop in Detroit that advertises that its mattresses are custom made. The Second Report then shows the segments from the First Report with Del and Hassan's Shop's TV advertisements. Wolchek then comments “What does custom made mean? In this case, it means made out of old mattresses.” The camera then shows footage from the Timeless Mattresses factory in Livonia as Wolchek narrates that “Here at this factory in Livonia, old dirty mattresses go in and new-looking ones come out.” He comments that people like Del and Rober featured in the First Report thought they were new and replays footage from the First Report of Rober and Del, along with Del's claim on camera that both her first and replaced mattresses from Hassan's Shop had bed bugs. Wolchek also replays the segment where he sent an undercover reporter into Hassan's Shop to buy a mattress, took the mattress back to the station, opened it up and discovered old stained materials with a cigarette burn inside the new looking cover. He discloses that he didn't find any bed bugs in the mattress, and replays the Health inspector's on-camera comments that he doesn't recommend mixing old bedding materials with new because bed bugs are hitchhikers that can be transported from one site to another even inside refurbished beds like the one shown on camera. The Second Report then replays the segment from the First Report where Wolchek goes back to Hassan's Shop and speaks with Hassan who claims he has not had any complaints from any customers, and then replays Del's and Rober's complaints. It also replays the segment showing the inside of the Timeless Mattresses factory with the old torn mattresses in close proximity to the new materials and replays Marcus's conflicting statements that Timeless Mattresses does not and does use old fabric in their refurbished mattresses. *6 Wolchek then explains that this is all perfectly legal, that these beds are sold in other shops in metro Detroit, but they are not sold in Jeff Scheuer's shop. The camera then shows Jeff, explaining that he is a small business that just wanted to help Del's family get some nice new beds and “he's got them.” The camera shows Jeff and the mattresses he is delivering to Del's family. Jeff explains that these mattress are “100% brand new.” Wolchek shows the old mattresses being removed from Del's home and comments, “Guess what was in those old mattress? You got it. Old bedding material.” The camera shows Jeff inspecting the inside of the Del's refurbished mattress that shows a Sealy tag and Jeff saying that he's sold Sealy mattresses for 20 years and did not recognize the material in Del's refurbished mattress and agrees with Wolchek that the material could be 30 years old. The Second Report concludes with Wolchek commenting that Jeff wanted to help Rober as well by giving him a new mattress, but by the time Wolchek reached Rober another company, Gardner White, had come forward to donate a brand new queen size mattress to Rober. Case 1:16-cv-01108-GJQ-PJG ECF No. 74-2 filed 11/18/16 PageID.1291 Page 11 of 17 Hazime v. Fox TV Stations, Inc., Not Reported in F.Supp.2d (2013) 2013 WL 4483485 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 Wolchek explains that Rober and Del were not looking for any handout, rather they were just two people brave enough to go on camera and tell their stories and help him out in exposing this refurbished mattress business and they got rewarded. One of the two Fox 2 News anchors then comments that they've heard from so many people telling them that bed bug infestations are a nightmare. Wolchek responds that these refurbished beds that they sell, you may think they are brand new beds, that it's very deceiving, and what consumers need to do is look for the yellow tag (he holds one up for the camera) but reminds viewers that even though they hide the yellow tags under white tags, the law requires that the yellow tag that says second hand materials be on the mattress and this means you might have an old bed inside your brand new bed. In response to an anchor's comment, Wolchek reiterates that this is all completely legal, that it is buyer beware. Wolchek also states that all the big companies like Sealy, Simmons, and Serta are all safe but you can't always tell if a mattress is refurbished just by looking at the price-that it is a tricky business. This matter is now before the Court on Defendant's motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b) (6). II. Rule 12(b)(6) Standard of Review A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint. In a light most favorable to the plaintiff, the court must assume that the plaintiff's factual allegations are true and determine whether the complaint states a valid claim for relief. See Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994); Bower v. Fed. Express Corp., 96 F.3d 200, 203 (6th Cir.1996). To survive a Rule 12(b)(6) motion to dismiss, the complaint's “factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the allegations in the complaint are true.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citations and emphasis omitted). See also Ass'n of Cleveland Fire Fighters v. City of Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir.2007). “[T]hat a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of all the elements of a cause of action, supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) The court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Id. at 679 (internal quotation marks and citation omitted). Moreover, “[o]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. “Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief.” Id. (internal quotation marks and citation omitted). Thus, “a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. In sum, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.” Id. at 678 (internal quotation marks and citation omitted). III. Analysis *7 Defendant raises three principal arguments in support of its motion seeking dismissal of all claims asserted in Plaintiffs' complaint: (1) claims brought by three of the Plaintiffs should be dismissed because Plaintiffs do not and cannot allege that any statements were made by Defendant “of and concerning” these three Plaintiffs that would give rise to the claims Plaintiffs assert; (2) all but Plaintiffs' defamation by implication and tortious interference claims should be dismissed because Plaintiffs fail to defend them; and (3) as to the remaining two claims, Plaintiffs have not and cannot establish that Defendant WBJK's broadcasts contain a materially false implication; and because that defamation claim fails, Plaintiffs' related tortious interference claim also fails. The Court addresses each of these arguments in turn. A. All Claims Brought By Three of the Plaintiffs Are Dismissed Defendant first argues that three Plaintiffs-Hussein Hazine, M & R Appliance and Mattresses LLC, and Rima Abou-Alayoui-do not and cannot allege that Defendant published a false and defamatory statement or implied Case 1:16-cv-01108-GJQ-PJG ECF No. 74-2 filed 11/18/16 PageID.1292 Page 12 of 17 Hazime v. Fox TV Stations, Inc., Not Reported in F.Supp.2d (2013) 2013 WL 4483485 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 a false and defamatory statement about them, requiring dismissal of all claims asserted by them against Defendant. This Court agrees. Under Michigan law, to prevail on a defamation claim, a plaintiff must allege and establish that the defendant published a false and defamatory statement concerning that plaintiff. See Curtis v. Evening News Assoc., 135 Mich.App. 101, 352 N.W.2d 355, 356 (Mich.Ct.App.1984) (holding that “[b]ecause plaintiff failed to allege that defendant published a false and defamatory statement ‘concerning plaintiff,’ plaintiff failed to state a claim on which relief could be granted”). See also Pullman Indus., Inc. v. Mfrs. Enameling Corp. ., 15 F. App'x 297, 303 (6th Cir.2001) (affirming the district court's grant of summary judgment in favor of the defendant on the plaintiff's defamation claim and concluding “that the lack of any direct or indirect defamatory reference to [the defendant] in [the challenged publication] defeats the plaintiff's defamation claim as a matter of law.”); Siddiqui v. Gen. Motors Corp., No. 302446, 2012 WL 335680, *6 (Mich.Ct.App. Feb.2, 2012) (observing that “[o]ne of the basic requirements of a defamatory statement is that it must have a specific reference to the plaintiff” and holding that “the trial court did not err in dismissing plaintiff's business defamation claim” when “the allegedly defamatory statements contained in the letter do not have a specific application” to the corporate plaintiff). The three Plaintiffs that Defendant identifies-Hussein Hazime, M & R Appliance and Mattresses LLC, and Rima Abou-Alayout-have not and cannot allege facts that satisfy this essential element of a defamation claim. Plaintiffs' complaint makes no allegations regarding these three Plaintiffs other than to state that they are either a Michigan resident or Michigan corporation. (Compl., ¶¶ 6, 8, 9 and 11.) That Plaintiff Hussein Hazime is the sole member of Plaintiff Timeless Mattresses LLC fails to satisfy this element. Statements about corporate Plaintiff Timeless Mattresses LLC are not, as a matter of law, statements “of or concerning” individual Plaintiff Hussein Hazime. See Gilbert Shoe Co. v. Rumpf Pub. Co., 112 F.Supp. 228, 229 (D.Mass.1953) (affirming decision dismissing the individual plaintiff's defamation claims for failure to state a claim upon which relief could be granted because “[t]he allegedly libelous statement involved here refers solely to the plaintiff corporation and not to the individual plaintiff” and “[i]t is essential in an action for libel that the publication of the libel should be of or concerning the plaintiff. One who is not himself libeled cannot recover even though he has been injured by the libel published concerning another. In particular, an officer or stockholder of a corporation who is not personally libeled has no right to recover for a libel published of the corporation.”) (internal citations omitted). Accord, AIDS Counseling and Testing Ctrs. v. Group W Television, Inc., 903 F.2d 1000, 1005 (4th Cir.1990) (affirming the dismissal of individual plaintiff and observing that “[c]ommon sense, as well as the law of defamation, dictates that, in order for a claim for defamation to arise, a publication must refer to the individual who seeks to sue on the publication.”) (citing cases). *8 The Court now addresses Defendant's second argument-that Plaintiffs' failure to defend all but two of their claims in response to Defendant's motion to dismiss results in a waiver of those claims. 2. Claims Not Addressed Are Waived Defendant argues that Plaintiffs' failure, in their response brief, to address the merits of all but their defamation by implication and tortious interference claims results in a waiver of those ignored claims. This Court agrees. “The Sixth Circuit has held that a party's failure to respond to or oppose an issue raised in a Rule 12(b)(6) motion may result in waiver of the issue.” Simpson v. G4S Secure Solution (USA), Inc., --- F.Supp.2d ----, 2013 WL 2014493, *3 (W.D.Tenn. May 13, 2013) (citing Allstate Ins. Co. v. Global Med. Billing, Inc., No. 12-1263, 2013 WL 1405142, *3 (6th Cir. Apr.8, 2013); Humphrey v. U.S. Attorney Gen.'s Office, 279 F. App'x 328, 331 (6th Cir.2008)). The same result applies to claims that a plaintiff fails to defend in response to a defendant's motion to dismiss. See Rondigo, LLC v. Twp. of Richmond, Mich., No. 12-1515, 2013 WL 1271668, *2 (6th Cir. Mar.28, 2013) (affirming the district court's dismissal of the plaintiff's state-law claims and holding that “the plaintiffs have waived these claims” because “[t]he plaintiffs did not address the merits of their state-law claims and therefore failed to develop their argument against dismissal.”). Because Plaintiffs fail to defend the following six claims in response to Defendant's Rule 12(b)(6) motion to dismiss, they are dismissed: Libel per se (Claims 1 and 2), false light (Claim 3), reckless disregard/actual malice (Claim 5), Case 1:16-cv-01108-GJQ-PJG ECF No. 74-2 filed 11/18/16 PageID.1293 Page 13 of 17 Hazime v. Fox TV Stations, Inc., Not Reported in F.Supp.2d (2013) 2013 WL 4483485 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 7 negligence (Claim 6), and the claim for legal fees and costs (Claim 7). The Court now turns its attention to the defamation by implication and tortious inference claims that Plaintiffs do defend. C. Plaintiffs Cannot State A Claim For Defamation By Implication Defendant next argues that Plaintiffs cannot state a claim of defamation by implication, and Plaintiffs argue the opposite. The Court begins its analysis of the parties' arguments with a discussion of the legal principles that govern defamation claims involving privatefigure Plaintiffs, matters of public concern, and a news media Defendant. As the Michigan Supreme Court observed in Rouch v. Enquirer & News of Battle Creek Michigan, 440 Mich. 238, 487 N.W.2d 205, 258 (Mich.1992), “[t]he common law has never required defendants to prove that a publication is literally and absolutely accurate in every minute detail.” Moreover, “[i]n contrast to the early common law, where falsity was presumed and the defendant was required to prove substantial truth as a defense, the burden of proving falsity has now been shifted to the plaintiff.” Id. at 259, 487 N.W.2d 205. As to Michigan's common-law test for falsity, the Rouch court clarified that “[m]inor inaccuracies do not amount to falsity so long as the substance, the gist, the sting, of the libelous charge be justified. Put another way, the statement is not considered false unless it would have a different effect on the mind of the reader from that which the pleaded truth would have produced.” Id. at 260, 487 N.W.2d 205 (quoting Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 517, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991) (internal quotation marks and citations omitted)). *9 Michigan law recognizes “a cause of action for defamation by implication,” that can only be established “if the plaintiff proves that the defamatory implications are materially false” but does not require “a direct showing of any actual literally false statements.” Hawkins v. Mercy Health Servs., Inc., 230 Mich.App. 315, 583 N.W.2d 725, 732 (Mich.Ct.App.1998) (emphasis in original) (discussing Locricchio v. Evening News Ass'n, 438 Mich. 84, 476 N.W.2d 112 (1991)). The leading case on defamation by implication claims is Locricchio v. Evening News Association, 438 Mich. 84, 476 N.W.2d 112 (1991). There, the Michigan Supreme Court examined the plaintiffs' defamation claim based on the Detroit News' publication of a four-part series of articles on the plaintiff's development of the Pine Knob complex in the 1970's. Locricchio, 476 N.W.2d at 114. Plaintiffs were unable to identify any materially false statements of fact in the reporting and relied instead on a claim of defamation by implication. Id. Specifically, they claimed that “the Pine Knob series as a whole falsely implied that plaintiffs were members, or associates of organized crime” and that “the layout of the Pine Knob articles, including photographs and headlines, as well as the repetition of certain words such as ‘Mafia,’ ‘Sicilian,” and ‘money wash,’ and indeed certain specific statements, contribute to the overall implication.” Id. at 132. The plaintiffs had prevailed on their claim at trial, but “the trial court ruled that the evidence regarding falsity did not support the jury's verdict, and directed a verdict for the Detroit News.” Id. at 114. Plaintiffs then prevailed on appeal, and this time the Detroit News filed an appeal. Id. The Michigan Supreme Court considered two issues on appeal: (1) did the Court of Appeals err in reversing the trial court's directed verdict; and (2) “can a private-figure plaintiff recover damages in a media-defendant/public-interest subject matter libel action where the plaintiff alleges defamatory implication but fails to identify or prove any materially false factual statements or implications or omissions?” Id. As to the first issue, it held that the Court of Appeals did err “in reinstating the jury verdict in favor of plaintiffs.” Id. at 115. The Michigan Supreme Court then found that, because the plaintiffs failed to prove “falsity in either the underlying facts or in their implication,” it need not “answer the second question as posed.” Id. Rather, it held “simply that the plaintiffs failed to carry their burden of proving either false and defamatory factual statements or false implications.” Id. As the Locricchio court explained: Unfortunately for the plaintiffs, an inescapable implication of the Pine Knob series conforms to the facts developed at trial: the plaintiffs had numerous financial and social connections with reputed organized crime figures and these associations contributed in the financing of Pine Knob and prompted intense investigative scrutiny, if not harassment, from law enforcement authorities. Although capable of defamatory interpretation, Case 1:16-cv-01108-GJQ-PJG ECF No. 74-2 filed 11/18/16 PageID.1294 Page 14 of 17 Hazime v. Fox TV Stations, Inc., Not Reported in F.Supp.2d (2013) 2013 WL 4483485 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 8 the implications alleged by the plaintiffs do not arise from false facts or material omissions, and, standing alone, are not even proven by the plaintiffs to be false. *10 Id. at 132 (emphasis added and internal footnote omitted). Plaintiffs do not contest the well-established legal principles that they have the burden of proving falsity, that this burden cannot be met if the gist or sting of the alleged libel does not leave a different impression than would the literally accurate facts, and that a court must view the challenged statements in the context of the entire broadcast. (Resp. at 3-4, 6, 12.) Plaintiffs here do not identify any materially false facts in the Reports. Rather, similar to the Locricchio plaintiffs, they argue that the Reports, as a whole, give rise to false implications-that they were intentionally and dishonestly passing off refurbished mattresses as new (Resp. at 10), that Plaintiffs' customers were unhappy and not satisfied with their mattresses (Resp. at 11); that the mattresses Plaintiffs sold were contaminated with bed bugs (Resp. at 13), and that Plaintiffs “are running dishonest, unethical, illegal businesses.” (Resp. at 13.) Plaintiffs also argue that Defendant's omission of a material fact from the Reports-that customers sign a receipt that discloses that “All mattresses are rebuilt/Reconditioned”-also helped create the false impression that Plaintiffs were passing off refurbished mattresses as new to unsuspecting consumers. (Resp. at 6.) This Court disagrees with Plaintiffs. Addressing the third argument first, it cannot be disputed that Wolchek, in both Reports, repeatedly stated that the refurbished mattress business featured in his “Problem Solver” segment was perfectly legal. These statements are not capable of the defamatory meaning that Plaintiffs contend is the gist and sting of the First and Second Reports. Plaintiffs' second argument-that the Reports created the false impression that they sold mattresses that were contaminated with bed bugs fails-also fails. First, it was Del, a customer of Plaintiff Hassan's Shop, who stated on camera her belief that both the original and replacement mattresses she got from Hassan's Shop were contaminated with bed bugs, not Defendant. Plaintiffs' claim is similar to one raised by the plaintiff in McLachlan v. Kneff, No. 193448, 1997 WL 33344009, *3 (Mich.Ct.App.1997) and rejected by the Michigan Court of Appeals. The plaintiff's defamation claim in McLachlan was rejected because the article the defendant had published in a local paper reported what someone else had told the defendant reporter-that the plaintiff had offered that other person a bribe-and the plaintiff could not dispute that that other person had in fact made the allegedly defamatory statement. The McLachlan court ruled that the plaintiff's attempts to dispute “that he did not actually offer a bribe,” failed to establish that what the defendant published was false, and thus affirmed the dismissal of plaintiff's “claim of defamation regarding defendant Dresch's article.” Id. at *2. The same reasoning and result apply here. *11 The Reports at issue here truthfully reported that it was Del who said the mattresses she purchased from Hassan's Shop had bed bugs. Plaintiffs do not allege or argue that Defendant inaccurately portrayed Del's belief that there were bed bugs in the mattresses she bought from Hassan's Shop. Accordingly, Plaintiffs' cannot establish a defamation claim arising out of Del's statements about bed bugs or Defendant's accurate portrayal of her comments. The same is true of the Environmental Health Department inspectors' oncamera recommendation that old bedding materials not be mixed with new because bed bugs are hitchhikers and travelers that can be transported from one facility or site to another even inside refurbished beds like the one purchased by the undercover reporter at Hassan's Shop; a mattress that Defendant's investigative reporter Wolchek expressly stated on camera did not have bed bugs. The Reports also showed Marcus, an employee of Plaintiff Timeless Mattresses LLC, asserting on camera that they strip mattresses down to the spring system and bed bugs could not live in a spring system. That “bed bugs” were mentioned several times both in the Reports and in the anchor's pre- and post- airing comments is insufficient to establish a claim of defamation by implication. As the Locricchio court made clear, Plaintiffs must show that the Reports “as a whole disseminate false impressions,” and they cannot meet that burden here. See Locricchio, 476 N.W.2d at 133. Next, the Court addresses Plaintiffs' argument that the Reports created that false impressions that they sold mattresses that looked new on the outside but contained used bedding materials on the inside and that they tried to equate “refurished” or “custom made” with “new.” These arguments are rejected because Plaintiffs cannot show that these impressions are materially false. Case 1:16-cv-01108-GJQ-PJG ECF No. 74-2 filed 11/18/16 PageID.1295 Page 15 of 17 Hazime v. Fox TV Stations, Inc., Not Reported in F.Supp.2d (2013) 2013 WL 4483485 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 9 Similar to Del's bed bug assertion, investigative reporter Wolchek accurately reported the impressions of two customer's of Hassan's Shop-Del and Rober-who said they believed that the mattresses they bought were new. Defendant did not make these allegations, Del and Rober did. Accordingly, the holding in McLachlan applies here as well-Plaintiffs cannot prove the requisite element of falsity in Defendant's Reports about Del and Rober's personal impressions that the mattresses they purchased were new. Likewise, Plaintiffs do not dispute facts that give rise to the impression that the mattresses consumers were purchasing looked new on the outside but contained used bedding materials on the inside and that consumers may be unaware of that fact. This is an impression that Plaintiffs' cannot prove to be false in light of the following undisputed facts: • Plaintiffs covered used bedding materials with new fabric, and then wrapped the completed, refurbished product in plastic; • Plaintiff Hassan's Shop markets its mattresses as “custom made;” • Plaintiff Hassan's Shop's salesman replied to an undercover reporter's question, “This is new, right?” with “Yeah, refurbished;” *12 • The mattress purchased from Hassan's Shop was taken back to Defendant's station, cut open by investigative reporter Wolchek, and exposed that used, soiled bedding materials were inside that mattress; • The mattresses Del said she purchased from Hassan's Shop and thought were new were also cut open and old, used bedding materials were found inside; • Marcus from Plaintiff Timeless Mattresses LLC initially denied and subsequently admitted on camera that “old product, old stuff” was used in their mattresses-mattresses that were sold to Hassan's Shop; • Plaintiffs attach the legally-required yellow tags with language informing consumers that “This article of bedding consists of in whole or in part Second Hand Materials” but do not deny that this yellow tag is placed under a white label that obscures that text and do not deny that both labels and the entire mattress are then covered with plastic wrapping; and • Plaintiffs display the mattresses to customers with the plastic-wrapped labels against the wall. The Court rejects Plaintiffs' claim that Defendant's Reports omitted a material fact-that customers sign a receipt after purchasing a mattress that discloses that “All Mattresses are rebuilt/Reconditioned” (Pls.' Compl., Ex. B, 2/28/12 Sales Receipt)-because that receipt fails to disclose that old, stained bedding materials are used in mattresses that are “rebuilt/Reconditioned.” That is the whole point of Defendant's Problem Solver Reports. Revelation of the signed receipt does not render the “gist” and “sting” of Defendant's Reports, when viewed as a whole, to be materially false. The gist and sting of Defendant's Reports is “buyer beware;” and more specifically, although the refurbished mattress business practices exposed in the Reports are perfectly legal, and the mattresses sold may look like new because they are covered with new material and wrapped in plastic, buyers should always look underneath this plastic wrapping for a yellow tag with the words “Second Hand Materials” that is required by law to be placed on the mattress but is often hidden underneath a white tag because the “Second Hand Materials” in that mattress may include used, dirty, stained bedding hidden underneath newer material just like the mattress the investigative reporter purchased from Hassan's Shop. Finally, the Court addresses Plaintiffs' remaining complaints about the title of the Problem Solver segment, “Dirty Little Mattress Secret Uncovered,” and isolated commentary, i.e., “It looks like a new bed [but] when you open it there was something inside that could give you nightmares;” “It's a Problem Solver story that gave people the creeps-an expose of the refurbished mattress business;” and “Problem Solver Rob Wolchek takes you inside a mattress factory in suburban Detroit, and what you'll see will have you tossing and turning all night.” The Court agrees with Defendant-these statements fall within the rhetorical hyperbole doctrine. *13 In Milkovich v. Lorain Journal Co., 497 U.S. 1, 19- 20, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990), the Supreme Court reaffirmed the legal principles that “a statement Case 1:16-cv-01108-GJQ-PJG ECF No. 74-2 filed 11/18/16 PageID.1296 Page 16 of 17 Hazime v. Fox TV Stations, Inc., Not Reported in F.Supp.2d (2013) 2013 WL 4483485 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 10 on matters of public concern must be provable as false before there can be liability under state defamation law, at least in situations ... where a media defendant is involved;” that “a statement of opinion relating to matters of public concern which does contain a provably false factual connotation will receive full constitutional protection;” and that First Amendment protection is afforded to “statements that cannot ‘reasonably [be] interpreted as stating actual facts' about an individual” because “[t]his provides assurance that public debate will not suffer for lack of ‘imaginative expression’ or the ‘rhetorical hyperbole’ which has traditionally added much to the discourse of our Nation.” Id. at 20 (quoting Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988)). The Milkovich Court observed that it has “recognized constitutional limits on the type of speech which may be the subject of state defamation actions” in those circumstances where “even the most careless reader must have perceived that the word was no more than rhetorical hyperbole....” Id. at 16-17 (internal quotation marks and citation omitted). Michigan courts have recognized and applied this “rhetorical hyperbole” doctrine. See, e.g., Garvelink v. Detroit News, 206 Mich.App. 604, 522 N.W.2d 883, 886 (Mich.Ct.App.1994) (holding that, “as a matter of law,” a satirical column about a local school superintendent could not “reasonably be interpreted as stating actual facts about plaintiff and it is, therefore, protected speech.”). Statements that “something inside” refurbished mattresses “could give you nightmares,” or that the Problem Solver story about refurbished mattresses “gave people the creeps,” or will have viewers “tossing and turning all night,” likewise cannot reasonably be interpreted as stating actual facts about Plaintiffs and thus constitutes rhetorical hyperbole and protected speech. Moreover, to point, as Plaintiffs do, to the segment's title, “Dirty Little Mattress Secret Uncovered, in isolation violates the well-established legal principle that this statement must be viewed in the context of the entire First and Second Reports. Just like the plaintiffs in Locricchio, Plaintiffs here seem to want to have it both ways on their defamation by implication claims, i.e., “[o]n the one hand, they assert that the [reports] as a whole disseminate false implications” while “[o]n the other, they point to statements or headlines in isolation from the whole....” Locricchio, 476 N.W.2d at 133. Prevailing defamation law does not allow them to do this. When read in context, the segment title as well as the other statements discussed above, are protected “rhetorical hyperbole.” See Fielder v. Greater Media, Inc., No. 267495, 2006 WL 2060404, *3 (Mich.Ct.App. July 25, 2006) (observing that the title of an article about Cecil Fielder, “ ‘Gambling Shatters Ex-Tiger's Dream Life,’ and statements ‘unstoppable gambling compulsion,’ and ‘Fielder is in hiding,’ are also protected ‘rhetorical hyperbole when read in the context of the article” because when “read in context,” these statements “would not be understood by the ordinary reader as statements of actual fact about the plaintiff.”). *14 The Court now addresses Plaintiffs' claims of tortious interference. D. Plaintiffs Cannot State a Claim for Relief for Tortious Interference Plaintiffs' Eighth Claim for Relief is styled, “Injurious Falsehood/Tortious Interference with an advantageous economic relationship and tortious interference with an economic relationship-Business defamation/defamation per se” and primarily re-alleges their defamation claims. (Pls.' Compl., ¶¶ 121-129.) Accordingly, because Plaintiffs' defamation claims are dismissed, their related tortious interference claim fails as well. It is well- established in Michigan law that once a defamation claim fails, all related tortious interference claims fall with it. See Lakeshore Cmty. Hosp., Inc. v. Perry, 212 Mich.App. 396, 538 N.W.2d 24, 27 (Mich.Ct.App.1995) (observing that “[a]s with defamation actions, where the conduct allegedly causing the business interference is a defendant's utterance of negative statements concerning a plaintiff, privileged speech is a defense.”). IV. Conclusion For the above-stated reasons, Defendant's motion to dismiss is GRANTED. All Citations Not Reported in F.Supp.2d, 2013 WL 4483485 End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 1:16-cv-01108-GJQ-PJG ECF No. 74-2 filed 11/18/16 PageID.1297 Page 17 of 17 6512067.1 Exhibit B Case 1:16-cv-01108-GJQ-PJG ECF No. 74-3 filed 11/18/16 PageID.1298 Page 1 of 7 Recordings: State rep asked aide to hide relationship Chad Livengood, Detroit News Lansing Bureau 1:28 p.m. EDT August 7, 2015 Lansing - State Rep. Todd Courser planned the distribution of a fictional email alleging he had sex with a male prostitute in a bid to conceal his relationship with Rep. Cindy Gamrat, according to audio recordings obtained by The Detroit News (https://soundcloud.com/detroitnews/rep-courser-tells-aide-his-misdirection- plan/s-seWMM). Courser, a Lapeer Republican, said on one recording the email was designed to create “a complete smear campaign” of exaggerated, false claims about him and Gamrat so a public revelation about the legislators’ relationship would seem “mild by comparison.” Interviews with former House employees and the recordings show freshman lawmakers Courser and Gamrat, R-Plainwell, used their taxpayer-funded offices to maintain and cover up their relationship. Courser, 43, and Gamrat, 42, rose from the ranks of tea party activism, battled establishment Republicans to win seats in the House last year and formed their own legislative coalition (/story/news/politics/2015/01/18/firebrands-test-fellow-gop- lawmakers/21981025/). DETROIT NEWS 2 state reps face probe, calls to quit (http://www.detroitnews.com/story/news/politics/2015/08/07/house-speaker-wants- investigation-courser-gamrat/31274709/) A now-former House aide recorded Courser in mid-May directing him to send Republican activists and operatives an email that would appear to be from an anonymous political enemy that said Courser had been “caught behind a Lansing nightclub” having sex with a man. detroitnews Rep. Courser tells aide his mi… 26.6K Cookie policy (On mobile devices, click here to hear audio of Rep. Courser telling his aide his plan.) (https://soundcloud.com/detroitnews/rep-courser-tells-aide-his-misdirection- plan/s-seWMM) After House aide Ben Graham rejected Courser’s May 19 request to take a sick day on May 20 and send the mass email to Republicans across Michigan, he says he had duties removed in subsequent weeks. By early July, Courser fired Graham and Gamrat ended the employment of her aide, Keith Allard - about a month after giving them both pay raises - without explanation. During the May 19 meeting, Courser instructed Graham to send rank-and-file Republicans across Michigan what he called “an over-the-top story that’s obscene about me.” It was designed, Courser said on the recording, to “inoculate the herd” - an apparent reference to Courser and Gamrat’s followers in the tea party movement. (Photo: file) SUBSCRIBE FOR AS LOW AS $5/MONTH FOR ADVANCE TICKETS TO TIM MCGRAW & FAITH HILL SOUL2SOUL TOUR SUBSCRIBE TODAY (HTTP://OFFERS.DETROITNEWS.COM/SPECIALOFFER? GPS- SOURCE=BENANO2&UTM_MEDIUM=OVERLAY&UTM_SOURCE=BOUNCE- EXCHANGE&UTM_CAMPAIGN=MESSINA) Page 1 of 6Ex-aides and recordings: Michigan lawmaker asked aide to conceal relationship 10/20/2016http://www.detroitnews.com/story/news/politics/2015/08/06/recordings-state-rep-asked-aide-hide-relati... Case 1:16-cv-01108-GJQ-PJG ECF No. 74-3 filed 11/18/16 PageID.1299 Page 2 of 7 Rep. Cindy Gamrat, R-Plainwell, talks with Rep Todd Courser, R-Lapeer, on the first day of the Legislature’s new session in January. The two lawmakers, in an unusual arrangement, combined their office operations, with three aides effectively working for both of them. (Photo: Dale G. Young / The Detroit News) “It will make anything else that comes out after that - that isn’t a video - mundane, tame by comparison,” Courser, a married father of four, told Graham. detroitnews … 7.9K Cookie policy (On mobile devices, click here to hear audio of more of Rep. Courser's conversation with his aide.) (https://soundcloud.com/detroitnews/this-is-a-crazy-way-to-deal-with- this-situation/s-n2duF) “I need a controlled burn,” said the lawmaker, who used the term three times during the meeting. During two meetings recorded by Graham, Courser and Gamrat, who is also married and has three children, did not dispute the aide’s characterization of their relationship as an extramarital affair. They acknowledged the aide’s discomfort but neither directly confirmed nor denied having a sexual relationship. Courser and Gamrat both declined to comment about whether the dismissals of Graham and Allard were related to their unwillingness to help hide their relationship. “I’m not going to talk about any kind of staff-related issues,” Gamrat said in a telephone interview Monday. On Monday morning, Courser told a Detroit News reporter and photographer to leave his Lapeer law office after being asked whether he wrote the email to get ahead of revelations of an affair. Courser initially declined to hear the recording, but confirmed “that’s my voice” as a Detroit News reporter played the recording in his office lobby. He then disputed the legality of the recording. “I’m not commenting on what happened in my office between Ben (Graham) and I inside here,” Courser said. “... I don’t have any comment at all.” Socially conservative legislators The pair are socially conservative legislators who often invoke their Christian faith (http://www.toddcourser.com/privatize_marriage_now) in pursuit of new legislation governing gun rights, abortion (/story/news/politics/2015/01/18/firebrands-test-fellow-gop-lawmakers/21981025/) and marriage (/story/news/politics/michigan/2015/06/19/gay-marriage-legislation-religion-michian/29018125/). Their political alliance dates back to Courser’s unsuccessful 2013 race for Michigan Republican Party chairman when Gamrat ran as his vice chairwoman. But since being sworn into office in January, the self-described tea party “gladiators” (/story/news/politics/2015/01/18/firebrands-test-fellow-gop-lawmakers/21981025/) have fought with Republican leaders. In an unusual move, Courser and Gamrat wrote a “liberty response” (http://www.toddcourser.com/liberty_response) to Republican Gov. Rick Snyder’s State of the State address in January - the kind of retort that typically comes from Democrats. In April, House Speaker Kevin Cotter kicked Gamrat out of Republican caucus meetings after she was caught leaking confidential discussions (/story/news/politics/2015/04/17/house-speaker-gamrat-ousted-gop-caucus- leaks/25955035/) among GOP members. In one of his lengthy emails to people involved in Michigan politics, Courser called the House speaker a “bully” (http://www.toddcourser.com/stand_w_rep_gamrat) who was waging a “witch hunt” and who was “dead set against (Gamrat’s) efforts to advance liberty and freedom.” In an unusual arrangement, Courser and Gamrat combined their office operations, having three aides effectively work for both of them. Graham, Allard and former aide Joshua Cline said they internally opposed the relationship between Courser and Gamrat and how it complicated the operations of their jointly run House office. Buy Photo SUBSCRIBE FOR AS LOW AS $5/MONTH FOR ADVANCE TICKETS TO TIM MCGRAW & FAITH HILL SOUL2SOUL TOUR SUBSCRIBE TODAY (HTTP://OFFERS.DETROITNEWS.COM/SPECIALOFFER? GPS- SOURCE=BENANO2&UTM_MEDIUM=OVERLAY&UTM_SOURCE=BOUNCE- EXCHANGE&UTM_CAMPAIGN=MESSINA) Page 2 of 6Ex-aides and recordings: Michigan lawmaker asked aide to conceal relationship 10/20/2016http://www.detroitnews.com/story/news/politics/2015/08/06/recordings-state-rep-asked-aide-hide-relati... Case 1:16-cv-01108-GJQ-PJG ECF No. 74-3 filed 11/18/16 PageID.1300 Page 3 of 7 “Everything in the office was done and intertwined around their relationship - from time management to who’s going to get what bills,” said Cline, a former legislative director who quit working for Courser and Gamrat in April after he said he confronted them about their relationship and “unprofessional” office behavior. ‘This is a crazy way’ Graham and Allard said their House work situation began rapidly deteriorating after Courser called Graham to his Lapeer law office at 10:30 p.m. on May 19 with an alarming request to “destroy me.” Not knowing whether Courser would become volatile, Graham said he recorded the 90-minute conversation without his boss’ knowledge. He subsequently provided an audio copy to The News. A Michigan Court of Appeals ruling says participants in a conversation may record a discussion without getting the permission of other participants. “A recording made by a participant is nothing more than a more accurate record of what was said,” the court decided in a 1982 case. During the meeting, Courser said earlier in the day, after the House adjourned, he and Gamrat received identical text messages from an unknown phone number with a message about their relationship. At several points, the House aide can be heard on tape advising Courser against distributing the email and urging him to acknowledge the relationship with Gamrat. “This is a crazy way to deal with this situation,” Graham told Courser on May 19 (https://soundcloud.com/detroitnews/this-is-a-crazy-way-to-deal-with-this- situation/s-n2duF). “Normally, people just like front it off, head it off themselves and say ‘Hey, this happened’ or quietly resign and go away.” Written using the pseudonym George Rathburn, the sexually explicit email was received by Republicans on May 20 and 21, the two days following Courser’s meeting with Graham. The missive claimed Courser was removed from the House GOP caucus after being caught having “paid male on male sex behind a prominent Lansing night club,” among other claims. During the May 19 meeting, Courser twice read aloud portions of a draft email to Graham. Most of the sentences Courser recited match copies of the email sent to Republicans and obtained by The News. “Nobody’s gonna believe any of that,” Graham said about the draft email. “Correct,” said Courser, who then added: “No, they’ll believe some of it. They’ll believe some of it.” Courser does not explicitly say he wrote the letter, only telling Graham “it’s already written” and that Gamrat “agreed” with sending it. “It’s what they won’t expect,” Courser said. “At that point, if they don’t have some really, really, really offensive stuff ... it will be tough for them to bring it after this.” The mass email calls Gamrat “a tramp” and claims she “has covered” for Courser “and her involvement is the real reason she was thrown out” of the House Republican caucus in April. “In a controlled burn, you do a little bit of truth mixed in with a lot of lies,” Courser explained to Graham. At one point, a cellphone began ringing and Courser identified the caller as Gamrat. The recording picked up Courser’s end of the conversation. “Ben and I are sitting here,” Courser said. “He’s trying to, trying to mentally process everything I just told him.” During the meeting, Courser wonders aloud whether someone has pictures, video or audio recordings of him and Gamrat. SUBSCRIBE FOR AS LOW AS $5/MONTH FOR ADVANCE TICKETS TO TIM MCGRAW & FAITH HILL SOUL2SOUL TOUR SUBSCRIBE TODAY (HTTP://OFFERS.DETROITNEWS.COM/SPECIALOFFER? GPS- SOURCE=BENANO2&UTM_MEDIUM=OVERLAY&UTM_SOURCE=BOUNCE- EXCHANGE&UTM_CAMPAIGN=MESSINA) Page 3 of 6Ex-aides and recordings: Michigan lawmaker asked aide to conceal relationship 10/20/2016http://www.detroitnews.com/story/news/politics/2015/08/06/recordings-state-rep-asked-aide-hide-relati... Case 1:16-cv-01108-GJQ-PJG ECF No. 74-3 filed 11/18/16 PageID.1301 Page 4 of 7 Aide refuses request Courser also told Graham to claim he was sick the next day - a Wednesday - after sending the email. “You’re going to do this and then go home,” Courser told the state employee. Graham asked Courser for time to think about the assignment of sending the email. The meeting ended at about midnight and he left the law office, Graham said. An hour later, Courser asked for an answer in a text message to Graham, which he released to The News. “If you see another way then let me know,” Courser wrote. “But if I can keep this from blowing all to hell, then I would like to give it a shot.” Graham replied by text that he wouldn’t participate in a “cover-up” and urged his boss to resign from office. “This kind of stuff never stays hidden. It’s going to blow up, and I can’t help cover it up,” Graham wrote. “... My best advice, consider resigning. You may be able to protect Cindy and her family and your family.” In a reply, Courser said he didn’t plan to resign “at this point.” “If they have something, I think a crucifixion is in order,” the lawmaker wrote in a text. It’s unclear who ultimately sent the email. But during the meeting, Courser said he has someone who does “this sort of thing” for him using “gmail accounts.” The email came from a georgerathburn520@gmail.com (mailto:georgerathburn520@gmail.com) address. SUBSCRIBE FOR AS LOW AS $5/MONTH FOR ADVANCE TICKETS TO TIM MCGRAW & FAITH HILL SOUL2SOUL TOUR SUBSCRIBE TODAY (HTTP://OFFERS.DETROITNEWS.COM/SPECIALOFFER? GPS- SOURCE=BENANO2&UTM_MEDIUM=OVERLAY&UTM_SOURCE=BOUNCE- EXCHANGE&UTM_CAMPAIGN=MESSINA) Page 4 of 6Ex-aides and recordings: Michigan lawmaker asked aide to conceal relationship 10/20/2016http://www.detroitnews.com/story/news/politics/2015/08/06/recordings-state-rep-asked-aide-hide-relati... Case 1:16-cv-01108-GJQ-PJG ECF No. 74-3 filed 11/18/16 PageID.1302 Page 5 of 7 Staffer recorded meeting Graham, a Lapeer native who worked on Courser’s past campaigns for office and helped him build a political machine, said he took a vacation day the next day after rejecting the order to send the email and claim to be sick. On the following day, May 21, Graham recorded another meeting in Gamrat’s House office in Lansing with both representatives present. Courser told Graham he wanted to “chat” about what took place two nights prior at his Lapeer office. Courser and Gamrat can be heard apologizing to their 25-year-old aide, who made direct comments that they “are having an affair.” “How long has this been going on?” Graham asks on the recording. “A year? Two years?” “No, I mean, I don’t want to go through the circumstance of how that developed,” Courser replied. Graham then quizzed his bosses on when the relationship developed since the pair ran for state GOP leadership positions in 2013. “It wasn’t back to the beginning and it wasn’t yesterday,” said Courser, later adding “some things happened and shouldn’t have happened.” At one point, Gamrat urged Graham to keep quiet about “a mistake that we made.” “I would ask you to just keep this private. This is not just about protecting me, it’s also about protecting Joe and the kids,” Gamrat said. Graham repeatedly tries to steer the discussion back to legislative matters and reminds Courser he’s late for a committee meeting. Courser was absent that day from a House Military and Veterans Affairs Committee meeting, committee records show. In the following weeks, Courser and Gamrat relieved Graham of his duties, including his main job speaking to their constituents, Graham and Allard told The News. On July 7, Courser and Gamrat terminated the employment of Graham and Allard, said Tim Bowlin, chief financial officer for the House business office. Office staff for individual House members are at-will employees and the reason for the firings doesn’t have to be given, Bowlin said. But the dismissals occurred several weeks after Courser and Gamrat gave Allard and Graham each 6 percent pay raises, the maximum salary increase allowed, according to House payroll records. Aides worked for both reps House members from neighboring districts or urban areas like Detroit sometimes share an employee for budgetary reasons, Bowlin said. But Courser and Gamrat’s House districts are nearly 130 miles apart on different sides of the state; Gamrat represents the 80th District (http://house.michigan.gov/mhrpublic/2012DistrictMaps/080.pdf) in west Michigan’s Allegan County, while Courser represents the 82nd District (http://gophouse.org/representatives/thumb/courser/districtmap/)in Lapeer County. “In the past, when it’s happened, it’s usually happened in districts that share a county or share proximity,” Bowlin said. Cline, the former aide who quit in April, said the joint office was devised to give Courser and Gamrat more legislative muscle. But within weeks of taking office, Cline said “everything was merged.” Courser and Gamrat began sitting in on meetings with constituents and lobbyists SUBSCRIBE FOR AS LOW AS $5/MONTH FOR ADVANCE TICKETS TO TIM MCGRAW & FAITH HILL SOUL2SOUL TOUR SUBSCRIBE TODAY (HTTP://OFFERS.DETROITNEWS.COM/SPECIALOFFER? GPS- SOURCE=BENANO2&UTM_MEDIUM=OVERLAY&UTM_SOURCE=BOUNCE- EXCHANGE&UTM_CAMPAIGN=MESSINA) Page 5 of 6Ex-aides and recordings: Michigan lawmaker asked aide to conceal relationship 10/20/2016http://www.detroitnews.com/story/news/politics/2015/08/06/recordings-state-rep-asked-aide-hide-relati... Case 1:16-cv-01108-GJQ-PJG ECF No. 74-3 filed 11/18/16 PageID.1303 Page 6 of 7 who wanted to meet with just one of them, he said. “It didn’t matter if it was inside the office or outside the office, all meetings were held together,” Cline said. Courser and Gamrat would demand that no meetings be scheduled on Thursday afternoons after the House adjourned for the week and most representatives were driving home to their districts, Cline said. The pair would frequently leave the office together for several hours on Thursday afternoons, asking the staff to stay in Lansing until they returned to the office for evening staff meetings that sometimes stretched on for hours, he said. “It measurably affected the time management of the office, the efficiency of the office and constituent services,” Cline said. Battle with Cotter During the May 19 recorded meeting, Courser speculated that Republican leaders may have been behind the anonymous text messages he and Gamrat received about their relationship. “The speaker, he’s got a wound in his side,” Courser told Graham. “They want something from us. They want us dead.” In the meeting, Courser also told Graham he desired news reports about the email to inflame his on-going battle with Cotter. “This is the best we came up with. Neither one of us want to be on somebody’s leash,” Courser later told Graham. “Neither one of us really want to be in Lansing if this is how we have to do it.” “You could just quit, you know,” Graham suggested. After a long audible pause, Courser replied: “I might have to.” clivengood@detroitnews.com (517) 371-3660 Read or Share this story: http://detne.ws/1NdJh37 SUBSCRIBE FOR AS LOW AS $5/MONTH FOR ADVANCE TICKETS TO TIM MCGRAW & FAITH HILL SOUL2SOUL TOUR SUBSCRIBE TODAY (HTTP://OFFERS.DETROITNEWS.COM/SPECIALOFFER? GPS- SOURCE=BENANO2&UTM_MEDIUM=OVERLAY&UTM_SOURCE=BOUNCE- EXCHANGE&UTM_CAMPAIGN=MESSINA) Page 6 of 6Ex-aides and recordings: Michigan lawmaker asked aide to conceal relationship 10/20/2016http://www.detroitnews.com/story/news/politics/2015/08/06/recordings-state-rep-asked-aide-hide-relati... Case 1:16-cv-01108-GJQ-PJG ECF No. 74-3 filed 11/18/16 PageID.1304 Page 7 of 7