rejecting defendant's assertion that pleading of non-fraud RICO claims must conform to Fed.R.Civ.P.9(b)Summary of this case from Lauter v. Anoufrieva
October 16, 2003
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS
Before the Court is Defendant KING Broadcasting Company's 12(b)(6) motion to dismiss all claims against it, or in the alternative, for a more definite statement. (Dkt. No. 5.) The motion was noted for August 15, 2003. Plaintiffs did not file a response. Approximately eight weeks after the motion was ripe for this Court's consideration, the Court received a letter from Plaintiff Mamie D. Hill requesting an extension. As justification for the extension request, she states that she has been out of town and she was not aware until just recently that this action had been removed to federal court. It appears, however, that she was served the notice of removal by mail on July 3, KING'S motion to dismiss by mail on July 21. Not only was Ms. Hill's request for an extension of time not properly filed as a motion, it does not appear to be warranted given the fact that she was served with the notice of removal and the motion to dismiss. Therefore, Ms. Hill is not granted an extension of time to respond to KING'S motion to dismiss. Ms. Marks has not responded at all to KING's motion to dismiss. Pursuant to Local Rule CR 7(b)(2), a failure to file any opposition to a motion may be considered by the court as an admission that the motion has merit.
In her letter, Ms. Hill states that she was served Defendant City of Seattle's motion to dismiss by messenger on October 3 or 4. City of Seattle's motion to dismiss is a different motion; it will be ripe for consideration on October 31. Therefore, Ms. Hill's proffered excuse of late notice seems to refer to a motion that is not currently before the Court.
Having considered the submissions of the parties, the Court GRANTS in part and DENIES in part Defendant's motion to dismiss. Plaintiffs' defamation claim is DISMISSED for failure to plead with sufficient specificity. The RICO claim is DISMISSED for failure to allege a predicate act. Ms. Marks' false light, outrage and emotion distress claims are DISMISSED because Ms. Marks is not pictured or named in the KING broadcasts at issue. Defendant's motion for dismissal Ms. Hill's false light, outrage and emotion distress claims is DENIED. Ms. Hill is directed to amend her complaint to set forth a more definite statement of her false light tort claim within 20 days of the date of this order. Failure to do so will result in dismissal of Ms. Hill's false light, outrage and emotion distress claims against KING. Since punitive damages are not available on Plaintiffs' remaining claims and special damages were not pled with the requisite specificity, Defendant's motion to dismiss the request for punitive damages is GRANTED.
Plaintiff Gloria Marks is an assistant to Ruby Dell Harris, who is Secretary and Chief Examiner of the City of Seattle's ("City") Public Safety Civil Service Commission ("Commission"). Plaintiff Mamie D. Hill is also an assistant to Ms. Harris. Plaintiffs filed a complaint in state court, alleging nearly identical claims as those alleged by Ms. Harris in an earlier law suit against many of the same defendants. Specifically, Plaintiffs alleged a racially motivated conspiracy involving many City employees to undermine their respective positions in the Commission as assistants to Ms. Harris. As part of this conspiracy, they allege that KING aired two broadcasts that were defamatory to both Plaintiffs, placed Ms. Hill in a false light, was outrageous towards Ms. Hill, invaded both Plaintiffs privacy, and resulted in severe emotional distress to both Plaintiffs.
The broadcasts centered on a trip Ms. Harris took to Las Vegas to attend a National Forum of Black Public Administrators conference. The broadcasts stated that Ms. Harris attended relatively little of the conference and instead spent most of her time shopping and gambling. The first broadcast referred to Ms. Hill by name, in conjunction with general complaints of mismanagement at the Commission. The reporter stated that a City audit "found Hill `used City equipment for personal business,' racked up `unnecessarily scheduled overtime,' and was getting `personal use of City rental cars.'" (KING'S motion to dismiss, Ex. B.) It specifically referred to Ms. Hill having used a rental car paid for by the City for personal use, for which Ms. Hill had failed to fully reimburse the City as of the date of the broadcast. It also contains a scene of Ms. Hill, shot on a Seattle public street, in which Ms. Hill responds to a question about whether she owed any money to the city. Neither broadcast appear to mention Ms. Marks by name. (Id.)
Plaintiffs sued various City employees, firms, a commissioner, a former mayor, and various councilmen in addition to KING. The action was originally filed in state court on June 3, 2003. The first Defendant was served on June 10. Defendants removed to federal court on July 7. Plaintiff alleges defamation, outrage, invasion of privacy, false light, intrusion, intentional infliction of emotional distress, violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961-1968, as well as civil rights violations under 43 U.S.C. § 1983, 1985, 1986, and 1988. In its motion to dismiss for failure to state a claim, KING argues: that Plaintiffs have failed to plead with specificity which statements were defamatory; that the broadcast does not identify Ms. Marks by name, that Plaintiffs have failed to plead with specificity which statements are false to substantiate their false light claim; that Ms. Hill's invasion of privacy and intrusion claims are not supported by the facts, that the outrage and intentional infliction of emotional distress claims cannot survive once the defamation and false light claims are dismissed, and that the RICO claim is legally defective. Further, KING argues that Plaintiffs have improperly pled special and punitive damages.
In addition to the pleadings themselves, the Court considered transcripts of the KING broadcasts at issue. Though this is a motion to dismiss, the Court may take judicial notice of the broadcasts when evaluating whether Plaintiffs have stated a claim, as the broadcast was specifically mentioned in the complaint. See Branch v. Tunnel, 14 F.3d 449, 453 (9th Cir. 1994), rev'd in part on other grounds, Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002); Barren v. Reich, 13 F.3d 1370, s1377 (9th Cir. 1994).
I. Federal. Not State. Procedural Law Governs
The "substantive sufficiency" of the pleadings of the type considered in a federal 12(b)(6) motion are determined by the federal court as if the action had never been in state court. See Granny Goose Foods. Inc. v. Brotherhood of Teamsters Auto Truck Drivers. Local No. 70 of Alameda County, 415 U.S. 423, 437 (1974) ("[O]nce a case has been removed to federal court, it is settled that federal rather than state law governs the future course of proceedings, notwithstanding state court orders issued prior to removal.). Therefore, federal law, not state law, governs with what specificity Plaintiff must plead in order to survive a 12(b)(6) motion.
II. Dismissal under 12(b)(6)
KING has moved for dismissal based on Rule 12(b)(6). Ordinarily, "[a] complaint should not be dismissed unless it appears beyond doubt that plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." Van Buskirk v. Cable News Network. Inc., 284 F.3d 977, 980 (9th Cir. 2002). Additionally, all allegations of material fact are construed in a light most favorable to the non moving party. Allwaste. Inc. v. Hecht, 65 F.3d 1523, 1527 (9th Cir. 1995). However, the Ninth Circuit has held that despite the liberal pleading standard in the federal rules, courts should consider First Amendment concerns even at the pleading stage. "[W]here a plaintiff seeks damages . . . for conduct which is prima facie protected by the First Amendment, the danger that the mere pendency of the action will chill the exercise of First Amendment rights requires more specific allegations than are otherwise required." Flowers v. Carville, 310 F.3d 1118, 1130 (9th Cir. 2002). Thus, in this Circuit, courts must balance First Amendment concerns with the federal rules liberal pleading standards, when determining whether to dismiss a claim pursuant to Rule 12(b)(6).
Defamation claims, in particular, must be advanced with sufficient specificity. While the Ninth Circuit has not stated explicitly with what level of specificity plaintiffs must state their claims involving defamation, Flowers is instructive. In Flowers, the plaintiffs complaint was found to have been pled sufficiently when she "list[ed] the precise statements alleged to be false and defamatory, who made them and when."Id. at 1131. Additionally, even if portions of the broadcast are inaccurate, "minor inaccuracies do not amount to falsity so long as the substance, the gist, the sting, of the libelous charge can be justified." Van Buskirk, 284 F.3d at 982. See also Herron v. KING Broadcasting Co., 112 Wn.2d 762, 769 (1989), modified,Richmond v. Thompson, 130 Wn.2d 368 (1996).
Plaintiffs' complaint does not identify with specificity any statements in the broadcasts that were defamatory. Plaintiffs' complaint alleges that "Defendants defames, frames, and setup and otherwise harmed Mamie Hill and Gloria Marks." (Compl. ¶ 42.) However, this allegation seems to be made in connection to a series of events regarding personnel changes in the Commission set forth in ¶¶ 9-41. None of those paragraphs refer to the broadcasts, let alone specific statements in the broadcasts. The Court cannot find any other references to defamation in the complaint. Therefore, Plaintiffs' allegations fail to state with specificity the alleged defamatory statements. KING'S motion to dismiss the defamation claim is GRANTED.
2. False Light
In addition to defamation, Ms. Hill alleges a false light claim, presumably based on the references to her in the broadcast regarding excessive overtime and personal use of a rental car paid for by the City. She alleges that these references attribute actions to her which she did not take.
KING contends that the false light privacy tort has not been recognized by Washington courts. KING'S reliance on Hoppe v. Hearst Corp. for this proposition is misplaced. 53 Wd. App. 668, 677 n. 5 (1989). The court dismissed the plaintiff s false light claim because the plaintiff, who was a public figure, had failed to show that the defendant had acted with the requisite actual malice. Id. at 677. The footnote that KING quotes, in which the court says that the matter could have been dismissed for the alternate reason that Washington courts have not recognized the false light tort, is dicta. Moreover, the footnote appears to misinterpretEastwood. Eastwood did not hold that false light is not recognized in Washington. Rather, Eastwood merely declined to reach the issue of whether false light is an actionable tort in Washington. Eastwood, 106 Wn.2d at 473. The fact that false torts claims have been raised in other cases and dismissed for failure to satisfy the elements of a false light claim implies that there is no definitive law in Washington refusing to recognize false light torts.See La Mon v. City of Westport, 44 Wn. App. 664, 669 (1986) (false light claim dismissed because nothing was published). Therefore, it is not for this Court to conclude that the tort of false light is not cognizable under Washington law.
Failing in this argument, KING contends that a plaintiff must plead false light with the same specificity as for a defamation claim. However, its reliance on Eastwood for this contention is again misplaced. Eastwood held that the same statute of limitations should apply to false light claims as to defamation claims because many of the same interests are involved and many of the same elements are required for such claims. Id. 106 Wd.2d at 471-73. This does not mean, however, that the same specificity is required in the complaint. Given this Court's previous decision in Harris v. City of Seattle on this same issue, finding that there is no specificity requirement for false light allegations, this Court will not endorse the interpretation of Washington law that KING has proposed in its motion to dismiss.
Lastly, KING argues that Plaintiffs have failed to comply with Fed.R.Civ.P. 8(a) because Plaintiffs have alleged a legal conclusion, but have failed to allege any facts to support this conclusion. While a plaintiffs factual allegation must be assumed true in deciding a 12(b)(6) motion to dismiss, the court need not assume that the legal conclusion are true "merely because they are cast in the form of factual allegations." Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). Here, Plaintiffs' complaint lacks any factual allegations upon which KING could adequately rely in preparing an answer to the complaint. Therefore, the Court GRANTS KING'S motion, in the alternative, for an order requiring the Plaintiffs to file an amended complaint containing a more definite statement. Plaintiff Ms. Hill is directed to file an amended complaint containing a more definite statement of her false light tort claim. Accordingly, KING'S motion to dismiss the false light claim is DENIED. 3. Invasion of Privacy and Intrusion Claims
Because it appears from the complaint that only Ms. Hill alleges false light invasion of privacy tort, (Compl. ¶ 51), only Ms. Hill is directed to amend her complaint in this regard. The court notes that if Ms. Marks has also alleged a false light tort, such a claim is DISMISSED because the broadcast contains no mention of Ms. Marks.
Plaintiffs allege that KING invaded their privacy and intruded on Ms. Hill's private space, presumably when it filmed her on a Seattle public street and asked her if she owed the City any money. (Compl. ¶¶ 50 52.) Even taking all facts alleged by Plaintiffs as true, Plaintiffs have failed to state a prima facie case of unwarranted intrusion into their seclusion or an unjustified public disclosure of private facts. Mark v. KING Broadcasting Co. 27 Wn. App. 344, 356 (1980). KING did not film Ms. Hall in a place where a reasonable person would expect privacy, such as one's home. Ms. Hall was filmed on a Seattle public street, where no one has a reasonable expectation of privacy. Accordingly, there was no invasion of her private space and no intrusion into her legitimately private activities that revealed intimate personal facts. See Medical Laboratory Management Consultants v. American Broadcasting Companies. Inc., 306 F.3d 806, 817 (9th Cir. 2002). Ms. Hall's invasion of privacy and intrusion claims are DISMISSED. Additionally, KING did not film Ms. Marks at all. Therefore, any invasion of privacy claim by Ms. Marks is DISMISSED. KING'S motion to dismiss the invasion of privacy and intrusion claims is GRANTED.
4. Intentional Infliction of Emotional Distress and Outrage
KING claims that the Court should dismiss the emotional distress and outrage claims because the Plaintiffs have alleged no facts to support such claims. Alternatively, according to KING, the claim must be dismissed once the defamation and false light claims are dismissed. It is true that courts must dismiss emotional distress claims based on unsuccessful libel claims. Dworkin, 867 F.2d 1188, 1193 n. 2 (9th Cir. 1989). Additionally, outrage claims based on defamatory statements are governed by the same first amendment concerns as defamation. See Hustler Magazine v. Falwell, 485 U.S. 46, 55-56 (1988). Further, outrage claims are inseparable from emotional distress claims. Dworkin, 867 F.2d at 1193. However, a sufficiently pled false light claim is distinct from the defamation claim. Here, the outrage and emotional distress claims are based not only on the statements in the broadcast, but the impact of the allegedly false portrayal of Plaintiff in the newscast. Thus, even if the defamation claim fails, it is inappropriate to dismiss the outrage and emotional distress claim, particularly given that false light is intended to compensate for mental suffering. See Leidholdt v. L.F.P. Inc. 860 F.2d 890, 893 n. 4 (9th Cir. 1988). Until Ms. Hill amends her complaint to set forth the facts supporting her false light claim, the Court cannot conclude that her intentional infliction of emotional distress and outrage claims should be dismissed. Since an actionable tort survives the pleading stage, Defendant's motion to dismiss Ms. Hill's outrage and emotional distress claims is DENIED.
Because the broadcast does not mention Ms. Marks by name, and because the broadcasts appear to be the only connection to any alleged wrongdoing by KING, Ms. Marks' claim of intentional infliction of emotional distress as against KING is DISMISSED. Accordingly, KING'S motion to dismiss the intentional infliction of emotional distress claim by Ms. Marks is GRANTED.
5. RICO Claim
Plaintiffs have alleged that KING violated 18 U.S.C. § 1962(c) of RICO. Section 1962(c) makes it illegal for any person employed by an enterprise engaged in interstate commerce to "conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity ." To have standing under RICO a plaintiff must show that her property or business has been injured "by the conduct constituting the violation." Sedima v. Imrex Co., Inc., 473 U.S. 479 (1985). Thus, Plaintiffs must allege that KING has conducted a pattern of racketeering activity. "Racketeering activity" includes various criminal acts defined in § 1961(1). The activities listed in § 1961(1) are commonly referred to as "predicate acts." See Segarra v. Messina, 153 F.R.D. 22, 27 (N.D.N.Y. 1994). In the instant action, Plaintiffs allege that the predicate acts perpetrated by KING are the allegations and facts stated within the nineteen pages of the complaint. They do not clarify what specific actions of KING constitute the predicate acts. Thus, as applicable to Defendant KING, the alleged predicate acts must include the videotaping of Ms. Hill in Seattle, the broadcast of that videotaping, and the statements made within that broadcast Ms. Hill alleges were false and defamatory.
First, Defendant's assertion that Plaintiffs RICO claims have not been pled with sufficient specificity is inaccurate. The cases that Defendant cites, which state RICO pleadings must conform to Rule 9(b) standards, are all based on RICO liability theories that allege predicate acts involving fraud. See Moore v. Paine Webber. Inc., 189 F.3d 165 (2nd Cir. 1999) (predicate acts alleged were mail and wire fraud); Goren v. New Vision Intern. Inc., 156 F.3d 721 (7th Cir. 1998) (predicate acts mail and wire fraud), modified,Brouwer v. Raffensperger. Hughes Co., 199 F.3d 961 (2000).; Allwaste, 65 F.3d 1523 (predicate acts included commercial bribery, interference with commerce, using interstate commerce to promote unlawful activities, mail fraud); Segarra, 153 F.R.D. 22 (applicable predicate acts requiring specified pleading were mail and wire fraud). Pursuant to 9(b), complainants must plead fraud with particularity. Fed.R.Civ.P. 9(b) (2002). Thus, it is clear why a plaintiff must plead RICO claims based on fraud with particularity. However, while the defendants in those cases may have made false statements, they were false statements in the sense of fraudulent misrepresentation, not defamation or false light as in the instant case. Plaintiffs have not plead fraud. Thus, those cases are inapposite to the instant action.
Defendant is correct, however, that the acts alleged by Plaintiffs are not predicate acts within § 1961(1). "[R]acketeering activity consists of no more and no less than commission of a predicate act, § 1961(1). . ." Sedima, 473 U.S. at 495 (internal quotation marks omitted). Thus, to sustain a claim, Plaintiffs must allege that the harm they suffered was caused by a predicate act. Reddy v. Litton Industries. Inc., 912 F.2d 291. 294 (9th Cir. 1990). Even if Plaintiffs' allegations are true, no acts that KING is alleged to have perpetrated against Plaintiffs are predicate acts either listed in § 1961(1) or are in the spirit of this section. Invasion of privacy and defamation are civil allegations, not criminal ones of the sort contained in § 1961(1). Thus, it is impossible to determine what predicate acts KING committed from the complaint. The failure of Plaintiffs to specify a predicate act pursuant to § 1961(1) is fatal to their claim. Defendant's motion to dismiss the RICO claim is GRANTED.
III. Special and Punitive Damages
Defendant has alleged that Plaintiffs' claim of punitive damages is barred by Washington State law, and that Plaintiffs have failed to plead special damages with particularity as required by Federal Rule of Civil Procedure 9(g). In the complaint, Plaintiffs asked for thirty million dollars in punitive damages and "[s]pecial and other damages to be proven at trial" in addition to attorney's fees. (Compl., ¶¶ 4-6.)
In its 12(b)(6) motion, Defendant has essentially asked for a motion to strike the punitive damages remedy of the complaint. Washington law is clear that "under no circumstances" is a jury allowed to award punitive damages in a defamation case. Schmalenberg v. Tacoma News. Inc., 87 Wn. App. 579, 599 n. 56 (1997). There is no reason to distinguish between a false light and defamation claim for purposes of determining the availability of punitive damages. See Eastwood v. Cascade Broadcasting Co., 106 Wn.2d 466, 471 (1986) ("While all false light cases need not be defamation cases, all defamation cases are potentially false light cases."). Since Plaintiffs' outrage and emotion distress claim arise from the false light claim, Plaintiffs may not request punitive damages on the remaining causes of action advanced against KING. Defendant's motion to dismiss the punitive damages request is GRANTED.
KING is correct in asserting that Plaintiffs have failed to state with sufficient specificity, pursuant to Federal Rules, their claim of special damages. See Fed.R.Civ.P. 9(g); 5 C. Wright and A. Miller, Federal Practice and Procedure §§ 1310-1312 (2002); Isuzu Motors Ltd, v. Consumers Union of U.S., Inc., 12 F. Supp.2d 1035, 1047 (C.D. Cal. 1998). While many facts were included in the complaint, it is impossible to determine what the special damages alleged would consist of, besides emotional distress and attorney's fees which Plaintiffs have already separately pled under general damages. No specific monetary injury is linked to the defamation and false light claims. Accordingly, Defendant's motion to strike the claim of special damages is GRANTED.
Plaintiffs' defamation claim is DISMISSED for failure to plead with sufficient specificity. The RICO claim is DISMISSED for failure to allege a predicate act. Ms. Marks' false light, outrage and emotion distress claims are DISMISSED. KING'S motion to dismiss Ms. Hill's false light, outrage and emotion distress claims is DENIED because Ms. Hill has stated causes of action for which relief can be granted. Ms. Hill is directed to amend her complaint to set forth a more definite statement of her false light tort claim within 20 days of the date of this order. Failure to do so will result in dismissal of Ms. Hill's false light, outrage and emotion distress claims against KING. Since punitive damages are not available on Plaintiffs' remaining claims, and the special damages were not plead with the requisite specificity, Defendant's motion to dismiss the request for punitive and special damages is GRANTED.
The Clerk is directed to send copies of this order to all counsel of record.