EFTA01093254.pdf

Case 3:14-cv-30211-MGM Document 89 Filed 10/09/15 Page 1 of 38 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS TAMARA GREEN, THERESE SERIGNESE, and LINDA TRAITZ Plaintiffs, Civil Action No. 14-30211-MGM v. WILLIAM H. COSBY, JR. Defendant. MEMORANDUM AND ORDER REGARDING DEFENDANT'S MOTIONS TO DISMISS PLAINTIFFS' COMPLAINT (Dkt. Nos. 21, 22, and 23) October 9, 2015 MASTROIANNI, I. INTRODUCTION On December 10, 2014, Tamara Green filed a complaint alleging that William H. Cosby, Jr. ("Defendant') publicly defamed her in statements made by individuals operating at his direction and/or within the scope of their employment. (Dkt. No. 1, Compl.) The complaint was subsequently amended to include similar daims by two additional plaintiffs, Therese Serignese and Linda Traitz (collectively, the three are referred to as "Plaintiffs"). (Dkt. No. 13, Am. Compl.) Defendant filed motions to dismiss Plaintiffs' amended complaint in its entirety (Dkt. Nos. 21, 22, 23), which Plaintiffs opposed. (Dkt. No. 31.) Plaintiffs then sought leave to file a second amended complaint and, on April 16, 2015, the court granted Plaintiffs' request. Green v. Cot, Civil Action No. 14-30211-MGM, 2015 WL 1736487, at *2-3 (D. Mass. Apr. 16, 2015). Plaintiffs' second amended complaint ("SAC') supplemented factual allegations with respect to an EFTA01093254  Case 3:14-cv-30211-MGM Document 89 Filed 10/09/15 Page 2 of 38 allegedly defamatory statement directed at Green.' (Dkt. No. 48, SAC.) The court held a hearing on the matter and considered the written filings. II. JURISDICTION The SAC contains three defamation counts brought pursuant to state law. Defamation is not actionable under federal law. Federal courts have jurisdiction over suits brought pursuant to state law where there is complete diversity of citizenship between the adversaries and the amount in controversy exceeds a threshold amount of 575,000. 28 U.S.C. § 1332; Arbaugh P. Y&H Corp., 546 U.S. 500, 513 (2006). Based on the content of the complaint, which Defendant has not disputed, the court finds Defendant is a citizen of Massachusetts and Plaintiffs are citizens of either California or Florida. (SAC ¶¶ 2, 4-6.) Plaintiffs each assert they are entitled to damages in excess of the statutory threshold amount. In the absence of any challenge from Defendant, the court finds it has jurisdiction in this case pursuant to 28 U.S.C. § 1332. MOTION TO DISMISS STANDARD When considering a motion to dismiss pursuant to Rule 12(6)(6) of the Federal Rules of Civil Procedure, the court must accept all well-pleaded facts as true and draw all reasonable inferences in favor of the plaintiff. Ashcroft a Igbal, 556 U.S. 662, 678 (2009); see afro San Geroninto Caribe Project, Inc. P. Acevedo-Vila; 687 F.3d 465, 471 (1st Cir. 2012). The burden is on the moving party to demonstrate that even when viewed in the light most favorable to the plaintiff, the complaint lacks "sufficient factual matter" to state an actionable claim for relief that is "'plausible on its face."' Iqbai, 556 U.S. at 678 (quoting Bell AR Corp. P. TWOMbbi, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content I When the court granted leave for Plaintiffs to file the SAC, the court simultaneously afforded Defendant the opportunity to "file a motion to dismiss which responds to the newly amended complaint, or which supplements the 'motions to dismiss) previously filed." (Dkt. No. 46.) Defendant notified the court of his continued reliance on previously-filed submissions. (Dkt No. 62, Def. Letter/request (non-motion).) Accordingly, the court evaluates Defendant's previously-filed motions to dismiss, and arguments in support thereof, in relation to Plaintiffs' SAC. 2 EFTA01093255  Case 3:14-cv-30211-MGM Document 89 Filed 10/09/15 Page 3 of 38 that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. When evaluating the sufficiency of the factual allegations contained in the complaint, the court must be careful both to credit the factual assertions made by the plaintiff and to disregard "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Id "Determining whether a complaint states a plausible claim for relief" is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. A complaint must survive a motion to dismiss if the facts alleged are sufficient as to each element to "raise a right to relief above the speculative level." Twombfr, 550 U.S. at 555; see afro lister v. Bank of F.3d 20, 23 (1st Cir. 2015) ("Dismissal for failure to state a claim is appropriate if the complaint does not set forth factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory." (internal quotation marks omitted)). IV. FACTS AS ALLEGED BY PLAINTIFFSz During the 1970s, Defendant, "an internationally known actor and comedian," met each Plaintiff and subsequently sexually assaulted her. (MC ¶¶ 3, 7, 18-21, 39, 47-48, 57, 63.) With respect to Plaintiff Green, "[o]n a certain date in the early 1970s," Defendant offered her two pills, telling her they were over- the-counter cold medicine. (IdW10,12.) She took the pills and became weak and dizzy. (Id ¶¶ 13-14.) Defendant then drove Plaintiff Green to her apartment, where he subjected her to sexual contact against her 2 The court's factual summary includes an abbreviated version of those facts alleged by Plaintiffs. The court also makes use of the full text versions of the allegedly defamatory statements. For three of those statements, the court utilizes full text versions provided by Defendant as exhibits to his memorandum in support of his motions. (Dkt. No. 25, Decl. re: Mem. Supp. Mot. to Dismiss, Exs. A, D, F.) Plaintiffs have not contested the accuracy of the full versions of these statements provided by Defendant and the court considers them as "documents sufficiently referred to in the complaint" and as "central to plaintiff? claims." Say ItYaturson v. Pase, 987 F.2d I, 3 (1st Cir. 1993); fat afro Fudge ec Penthouse lel Lid., 840 F.2d 1012, 1015 (1st Cir. 1988) (affirming District Court's decision, under similar circumstances, to consider a copy of the article submitted by the defendant which had formed the basis of the defamation action, as it was central to the plaintiffs complaint). Additionally, the court uses the full text version of a fourth statement provided by Plaintiffs as an exhibit to their motion for leave to file their SAC. (Dkt. No. 20, Pls.' Mem. Supp. re: Mot. for Leave to File Second Am. Compl., Ex. C.) 3 EFTA01093256  Case 3:14-cv-30211-MGM Document 89 Filed 10/09/15 Page 4 of 38 will and despite her repeated demands to stop. (Id. ¶¶ 17-21.) Plaintiff Green was unable to defend herself during the sexual assault because she remained weak and vulnerable. (Id ¶ 22.) In 1970, Plaintiff Traitz met Defendant while working as a waitress. (Id. ¶ 57.) On one occasion she accepted a ride home from Defendant, but he instead drove her to a beach. (Id ¶¶ 58-59.) He parked his car and then opened a briefcase containing pills and urged Plaintiff Traitz to take some pills "to relax." (Id. ¶ 60.) When Plaintiff Traitz declined the pills, Defendant groped her, pushed her down, and attempted to lie on top of her, despite her resistance. (Id. ¶¶ 62-63.) Plaintiff Serignese met Defendant in Las Vegas in 1976 and attended his show. (Id. ¶¶ 39, 42-43.) Afterwards, she was invited to a room backstage where Defendant gave her two pills and instructed her to take them. (Id ¶¶ 43-44.) Plaintiff Serignese complied and the pills caused her to be in an altered state of consciousness. (Id. ¶¶ 44-45.) While she was in this altered state, Defendant subjected her to sexual contact without her consent. (Id ¶¶ 47-48.) Like Plaintiff Green, Plaintiff Serignese was physically unable to defend herself. (Id. ¶ 49.) Many years later, in February of 2005, the Philadelphia Daijy News published an interview with Plaintiff Green in which she publicly disclosed the sexual assault that had occurred in the 1970s. (Id.1 24.) Plaintiff Green also disclosed the allegations during appearances on television shows around the same time. (Id.) Nine years later, on or about February 7, 2014, Newsweek published an interview with Plaintiff Green in which she repeated her description of being sexually assaulted by Defendant in the 1970s. (Id.1 27.) On November 18, 2014, Plaintiff Traitz made an entry on her personal Facebook page publicly disclosing that Defendant had sexually assaulted her. (Id ¶ 64.) The following day, Plaintiff Serignese publicly disclosed that she had been sexually assaulted by Defendant.' (Id.1 50.) Several days later, on 3 \Vhile Plaintiff Serignese is not specific as to how or where this allegation was disclosed (la SAC ¶ 50), Defendant states that it was disclosed to the Haffingten Port. (Dkt. No. 24, Def.'s Mem. Supp. Mots. to Dismiss ("Def.'s Mem.") 5 (citing SAC ¶ 48).) Defendant has attached a document which he asserts to be the Hibigton Port article in question. (Decl. re: Mot. to Dismiss, Ex. C.) Plaintiff Serignese has not offered a conflicting explanation. 4 EFTA01093257  Case 3:14-cv-30211-MGM Document 89 Filed 10/09/15 Page 5 of 38 November 22, 2014, details of Plaintiff Green's sexual assault were published by the Washington Post. (hi ¶ 31.) Plaintiffs allege that Defendant, acting through his agents,' issued statements to the media in response to the public disclosures made by Plaintiffs. (Id 99 25-26, 28-29, 30, 32-35, 37-38, 51-53, 55-56, 65- 68, 70-71.) Defendant knew each statement was false at the time it was made. (Id. ¶¶ 36, 54, 69, 79, 90, 101.) Despite knowing the statements were false, Defendant directed the statements be made. (hi.13 37, 55, 70.) Each of the statements was widely read by many people, including Plaintiffs' families, friends, and neighbors, and Plaintiffs suffered damages, including to their reputations, as a result of the publication of the statements. (hi 1338, 56, 71, 80-82, 91-93, 102-104.) The statements were made as follows: A. Newsweek Statement — February 7, 2014 Prior to the publication of Newsweek's interview with Plaintiff Green in February of 2014, Defendant, acting through a publicist, believed by Plaintiffs to be David Brokaw ("Brokaw'), made a statement to Newsweek. (hill 28-30.) The publicist provided the statement to Newsweek while acting as Defendant's authorized agent, employee, or authorized representative and he knew or should have known the statement was false when it was made. (Id. ¶¶ 29, 77-78) The statement was appended to the end of the story and read, in its entirety: This is a 10-year-old, discredited accusation that proved to be nothing at the time, and is still nothing. (Dkt. No. 25, Decl. re: Mem. Supp. Mot. to Dismiss ("Decl. re: Mot. to Dismiss"), Ex. A at 3, hereinafter "Newsweek Statement.") In the SAC, Plaintiffs describe two of the individuals who issued the statements as doing so while an "agent, authorized representative, lawyer, servant, and/or employee" of Defendant and one as doing so while an "agent, authorized representative, servant, and/or employee" of Defendant (SAC ¶I 26, 29, 53.) As any distinctions among the meanings of these terms are not material at this stage, throughout this opinion the court refers to these individuals as Defendant's "agents." 5 EFTA01093258  Case 3:14-cv-30211-MGM Document 89 Filed 10/09/15 Page 6 of 38 B. November 20, 2014 Statement Two days after Plaintiff Traitz wrote on her personal Facebook page about Defendant sexually assaulting her in the 1970s, Defendant, acting through Martin D. Singer ("Singer"), released a responsive statement to numerous media outlets. (SAC ¶ 65.) Singer gave the statement while acting as Defendant's authorized agent, employee, or authorized representative and he knew or should have known the statement was false when it was made. (Id ¶¶ 53, 99-100.) The statement read, in its entirety, as follows: Ms. Traitz is the latest example of people coming out of the woodwork with fabricated or unsubstantiated stories about my client. Linda Joy Traitz is making ridiculous claims and suddenly seems to have a lot to say about a fleeting incident she says happened with my dient more than 40 years ago, but she hasn't mentioned either her 3 12/ year incarceration or her extensive criminal record with charges spanning from the 1980's through 2008. For the first time, she is claiming that in approximately 1970, my client supposedly drove her to the beach and had a briefcase filled with drugs and offered her pills to relax, which she says she turned down and demanded to be taken home after Mr. Cosby came on to her. There was no briefcase of drugs, and this is an absurd fabrication. Ms. Traitz's long criminal record for numerous offenses including charges for criminal fraud, possession of Oxycodone, cocaine possession, marijuana possession, and possession of drug paraphernalia, speaks for itself. As the old saying goes, "consider the source." (Ded. re: Mot. to Dismiss, Ex. F at 1, hereinafter "November 20, 2014 Statement.') C. November 21, 2014 Statement On November 21, 2014, Defendant, again acting through Singer, released a responsive statement to numerous media outlets. (SAC ¶¶ 51, 67.) Singer gave the statement while acting as Defendant's authorized agent, employee, or authorized representative and he knew or should have known the statement was false when it was made. (Id. ¶¶ 53, 88-89, 99-100.) The statement responded to allegations by Plaintiffs Traitz, Serignese, and other individuals who are not parties to this suit, without directly identifying any individuals by name, and read, in its entirety, as follows: 6 EFTA01093259  Case 3:14-cv-30211-MGM Document 89 Filed 10/09/15 Page 7 of 38 The new, never-before-heard claims from women who have come forward in the past two weeks with unsubstantiated, fantastical stories about things they say occurred 30, 40, or even 50 years ago have escalated far past the point of absurdity. These brand new claims about alleged decades-old events are becoming increasingly ridiculous, and it is completely illogical that so many people would have said nothing, done nothing, and made no reports to law enforcement or asserted civil claims if they thought they had been assaulted over a span of so many years. Lawsuits are filed against people in the public eye every day. There has never been a shortage of lawyers willing to represent people with claims against rich, powerful men, so it makes no sense that not one of these new women who just came forward for the first time now ever asserted a legal claim back at the time they allege they had been sexually assaulted. This situation is an unprecedented example of the media's breakneck rush to run stories without any corroboration or adherence to traditional journalistic standards. Over and over again, we have refuted these new unsubstantiated stories with documentary evidence, only to have a new uncorroborated story crop up out of the woodwork. When will it end? It is long past time for this media vilification of Mr. Cosby to stop. (Ded. re: Mot. to Dismiss, Ex. D at 1, hereinafter "November 21, 2014 Statement.") D. Washington Post Statement, November 22, 2014 On November 22, 2014, the Washington Post published its interview with Plaintiff Green, along with a responsive statement from Defendant. (SAC ¶¶ 31-33.) Defendant, acting through Walter M. Phillips Jr. ("Phillips"), either "gave" the statement to the Washington Post in 2014, or "originally published" the statement in 2005 with the expectation and intent that the statement be republished if Plaintiff Green's allegations were reported again in the future, as occurred in November of 2014. (Id ¶¶ 34-35.) Phillips provided the statement while acting as Defendant's authorized agent, employee, or authorized representative and he knew or should have known the statement was false when it was made. (Id ¶¶ 26, 77-78.) The article quoted Phillips as stating Plaintiff Green's allegations were "absolutely false." (Dkt. No. 20, Pls.' Mem. Supp. re: Mot. for Leave to File Second Am. Comp!. ("Mem. re: Mot. to Am.") 15, Exs. B and C.) Phillips also stated: "Mr. Cosby does not know the name Tamara Green or Tamara Lucier [her maiden name] and the incident she describes did not happen." (Id.) In addition, Phillips stated the publication of "an 7 EFTA01093260  Case 3:14-cv-30211-MGM Document 89 Filed 10/09/15 Page 8 of 38 uncorroborated story of an incident that is alleged to have happened thirty years ago" was "irresponsible." (Id.)s The IVathington Post publishes articles both online and in print. The online version of the article is dated November 22, 2014 ("November 22, 2014 Washington Post Online Article") and the print version is dated November 23, 2014 ("November 23, 2014 Washington Post Print Article"). (NIem. re: Mot. to Am., Exs. B and C.) In the November 23, 2014 Washington Post Print Artide, Phillips is identified as "[a]nother Cosby attorney" and the statement is identified as having been "issued this past week." (NIem. re: Mot. to Am., Ex. B.) After publishing the original articles, the Washington Post issued slightly different correction notices with respect to both the online and print versions of the article, and, by December 12, 2014, had incorporated the correction itself into the body of the November 22, 2014 Washington Post Online Article. (Mem. re: Mot. to Am, Ex. C; Dkt. No. 28, Decl. re: Opp. to Pls.' Mot. for Leave to File Second Am. Comp/., Ex. 1.) Plaintiffs attached a copy of the corrected version of the November 22, 2014 Washington Post Online Article, which included the correction notice at the top of the article, as an exhibit in support of their motion for leave to file a second amended complaint. (Mem. re: Mot. to Ant, Ex. C.) In this corrected version of the November 22, 2014 Washington Post Online Article, dated December 12, 2014, the text has been changed from the print version° to identify Phillips as previous Cosby attorney" and the statement is identified as having been "issued in 2005 when the allegations first surfaced." (Id at 15.) The correction notice to the online version reads in its entirety: "This story originally said Cosby lawyer Walter M. Phillips Jr. had denied the allegations of Tamara Green in a statement issued during the past week. The statement was made when Green's allegations first surfaced in 2005. The story has been corrected." (Id at 1.)7 s The court will refer to these responsive statements, collectively, as the 'Washington Post Statement" 6 The panics have not provided the court with a copy of the original, uncorrected version of the November 22, 2014 Washington Post Online Article. 7 Defendant, in turn, has also provided the court with a copy of the correction notice issued with respect to the print edition and dated December 12, 2014. (Dkt. No. 28, Ded. re: Opp. to Pls.' Mot. for Leave to File Second Am. Compl., Ex. I.) It reads in its entirety: "IA Nov. 23 Page One article about the allegations of sexual assault against Bill Cosby misstated the timing of a statement of denial issued by an attorney for Cosby. The statement denying Tamara Green's allegations was issued by lawyer Walter M. Phillips Jr. when Green's allegations first surfaced in 2005, not in the week before the article was published." (id at 2.) 8 EFTA01093261  Case 3:14-cv-30211-MGM Document 89 Filed 10/09/15 Page 9 of 38 V. DISCUSSION A. Choice of Law "[F]edetal courts sitting in diversity apply state substantive law and federal procedural law." Garperitti v. Cir.for Humanities, Inc, 518 U.S. 415, 427 (1996). The court "determine's] which state's law applies by applying the choice of law rules of the forum state," in this case, Massachusetts. In Iv Volkswagen &Audi Irarmny Extension Litig., 692 F.3d 4, 14 (1st Cir. 2012). In tort cases, Massachusetts courts "consider choice- of-law issues 'by assessing various choice-influencing considerations,' ... including those provided in the Restatement (Second) of Cotylict of Laws (1971)." Cosme IP'hilin Mach. Works, Inc., 632 N.E.2d 832, 834 (Mass. 1994) (internal citation omitted) (quoting Bushkin Assocs., Inc. v. Raytheon Co., 473 N.E.2d 662, 668 (Mass. 1985)). Pursuant to section 150 of the Restatement (Second) of Conflict of Laws, "the law of the state where the defamed person was domiciled at the time of publication applies 'if the matter complained of was published in that state."' Davidson v. Cao, 211 F. Supp. 2d 264, 274 (D. Mass. 2002) (quoting Restatement (Second) Conflict of Laws§ 150(2) & cmt. b). The statements at issue in this case were published nationally, so the court applies the law of the state in which each Plaintiff was domiciled when the alleged publication occurred. Accordingly, California law applies relative to the claims of Plaintiff Green and Florida law applies as to the claims of Plaintiffs Traitz and Serignese. B. Statute of Limitations as to Claim Based on the Washington Post Statement The original cause of action asserted by Plaintiff Green referred to allegedly defamatory statements made by Defendant, through his agents, published in Newsweek and the Washington Post in 2014. Two days after this action was filed, the Washington Post issued the corrections indicating Phillips' statement (on behalf of Defendant) had actually been made in 2005 when Plaintiff Green first publicly disclosed the alleged sexual assault, and not in 2014 after Green publidy repeated these allegations. Thereafter, Plaintiffs filed the SAC, in which they continued to allege that Defendant, through Phillips, "gave" the statement to the 9 EFTA01093262  Case 3:14-cv-30211-MGM Document 89 Filed 10/09/15 Page 10 of 38 IP'asbington Port in 2014. (SAC ¶ 34.) The SAC also alleges "Liln addition, or in the alternative," that the statement was originally published in 2005 with Defendant's "expectation and intent that the statement would be republished by news outlets in the event that Plaintiff Green should repeat her accusations, and/or should these accusations be reported again, on a later date." (Id ¶ 35.) Furthermore, Plaintiffs allege, "it was reasonably foreseeable" that Defendant's 2005 statement would be republished by news media in stories regarding Green's repeated allegations, including the November 22, 2014 Washington Post article. (Id.) Defendant argues Plaintiff Green's claim based on the November 22, 2014 Washington Post article is barred by the statute of limitations. (Dkt. No. 24, Def.'s Mem. Supp. of Mots. to Dismiss ("Def.'s Mem.") 9-11); Dkt. No. 27, Def.'s Opp'n to Pls.' Mot. for Leave to File Second Am. Compl.) California has adopted a one-year statute of limitations for defamation claims. See Cal. Code Civ. Pro. § 340(c). According to Defendant, the "single publication rule" mandates that the limitations period commences on the date the statement was first published, in this case 2005, thereby rendering Green's claim untimely. As an initial matter, the parties contest whether the court may even consider the Washington Post correction in ruling on Defendant's motion to dismiss. According to Plaintiffs, because the correction contains no actionable defamatory language, it is not central to Green's claim and thus is not incorporated into the pleadings. Plaintiffs, however, attached a copy of the corrected November 22, 2014 Washington Post Online Article as an exhibit in support of their motion for leave to file a second amended complaint. (Mem. re: Mot. to Am., Ex. C.) Plaintiffs cannot rightfully have benefited from their own reliance on the correction and then assert they should also be shielded from what it says. Accordingly, while Plaintiffs did not attach the correction to the SAC following the court's allowance of their motion for leave to amend, the court believes, as a matter of fair and practical application of Rule 10(c) of the Federal Rules of Civil Procedure, their strategic use of that correction should have the same effect. See Trans -Spec Truck Sere. v. Caterpillar Inc., 524 F.3d 315, 321 (1st Cir. 2008) ("Exhibits attached to the complaint are properly considered part of the pleading `for all purposes' including Rule 12(b)(6)." (quoting Fed R. Civ. P. 10(c))); 10 EFTA01093263  Case 3:14-cv-30211-MGM Document 89 Filed 10/09/15 Page 11of 38 crest P. Temple, Civil Action No. 5:14-CV-86 (Mn), 2015 WL 757650, at *4 (M.D. Ga. Feb. 23, 2015) ("The Court will consider the information contained in the `carbon-copy grievance' attached to [the plaintiff's] motion to amend as part of his Complaint."); g' Cotter Indus., Inc. v. Sum Holding LP., 949 F.2d 42, 48 (2d Cir. 1991) ("[T]he problem that arises when a court reviews statements extraneous to a complaint generally is the lack of notice to the plaintiff that they may be so considered; it is for that reason—requiring notice so that the party against whom the motion to dismiss is made may respond—that Rule 12(b)(6) motions are ordinarily converted into summary judgment motions. Where plaintiff has actual notice of all the information in the movant's papers and has relied upon these documents in framing the complaint the necessity of translating a Rule 12(b)(6) motion into one under Rule 56 is largely dissipated."). At the very least, therefore, the court believes it may consider the correction to the November 22, 2014 Washington Post Online Article, even though Plaintiffs did not formally attach it to the SAC!' Plaintiffs next assert that even if the court considers the correction, it is not inconsistent with the allegation in paragraph 34 of the SAC that Phillips in 2014 "gave" the Washington Post the statement, even if it was originally published in 2005.9 Defendant, on the other hand, contends Plaintiffs' allegation is contradicted by the correction and the court cannot now credit their allegation. See Yatubian A United Slates, 750 F.3d 100, 108 (1st Cir. 2014) r[W]hen a written instrument contradicts allegations in the complaint to which it is attached, the exhibit trumps the allegations."' (quoting Young v. Welly Fair Bank, N.A., 717 F.3d 224, 229 n.1 (1st Cir. 2013))). The court agrees with Plaintiffs that the correction is not necessarily 8 As mentioned, the correction notice issued with respect to the November 23, 2014 Washington Post Print Article, provided by Defendant, is worded slightly differently than the correction notice for the November 22, 2014 Washington Post Online Article used by Plaintiff. (Su Dkt. 28, Decl. re: Opp. to PIs.' Mot. for Leave to File Second Am. Compl., Ex. 1; Mem. re: Mot. to Am., Ex. C) The court generally limits its discussion to the correction with respect to the online article, as that correction is treated as an attachment to the complaint, but recognizes both corrections make the same operative point. 9 Plaintiffs also argue the court may not take judicial notice of the correction because Defendant is attempting to use it to prove the truth of the matter asserted therein, i.e., that Phillips in fact provided his statement in 2005, not in 2014..lre, e.g., Karllek Spencer, 889 F. Supp. 2d 190, 215 n.6 (D. Mass. 2012), 4'd, 740 F.3d 733 (1st Cir. 2014), reed en bane on athergrannth, 774 F.3d 63 (1st Cir. 2014). The court is not taking judicial notice of the correction pursuant to Rule 201 of the Federal Rules of Evidence because Plaintiffs used it to support their motion to amend and relied on it in their SAC, effectively attaching it to their complaint. Accordingly, this limitation (documents judicially noticed under Rule 201 may not be considered for the truth of the matter asserted) is a non-issue. .See, e.g., Papadopoglos Anacker, No. 12-CV-3608 (D1-1)(RLM), 2013 WL 3226757, at *I n.I (E.D.N.Y. June 25, 2013). 11 EFTA01093264  Case 3:14-cv-30211-MGM Document 89 Filed 10/09/15 Page 12 of 38 inconsistent with the allegation that Defendant (through Phillips) "gave" the statement to the Wasington Post in 2014. The term "gave" does not necessarily mean verbally speaking the words but could be taken to mean, at this stage of the litigation, that Defendant's agent referred the Washington Post to the old statement or otherwise made the newspaper aware of the statement. Defendant asserts that because this allegation is "threadbare" and "speculative," the court should disregard it. See Penalbert-Rosa v. Fortsmo-Burset, 631 F.3d 592, 595 (1st Cir. 2011). The Supreme Court has explained, however, that "the pleading standard Rule 8 announces does not require `detailed factual allegations."' /04 556 U.S. at 678 (quoting Thom*, 550 U.S. at 555). Plaintiffs have explained in their opposition to dismissal that paragraph 34 of the SAC should be read to mean "that in November of 2014, Mr. Phillips gave the Washington Post a copy of a statement that he originally published in 2005; or that, in November of 2014, Mr. Phillips directed the Washington Post to republish the older statement." (Dkt. No. 32, Pls.' Mem. Supp. Opp'n to Def.'s Mots. to Dismiss ("Pls.' Mem.") 32-33.) See Penalbert-Rosa, 631 F.3d at 596 (indicating that a plaintiff may supply a missing detail in an opposition to a motion to dismiss). Plaintiffs also argue the Washington Post, in 2014, originally reported in an unambiguous way the statement had been "issued this past week." At this stage of the litigation, before the commencement of the discovery process, this provides a good-faith basis for Plaintiffs to allege Defendant, through an agent, by some means "gave" the statement to the newspaper in 2014. See Rodriguez-Viper P. P.R. Firefighters Corps, 743 F.3d 278, 286 (1st Cir. 2014) (explaining that the "threadbare" and "speculative" exception to assuming a plaintiff's factual allegations as true only applies when it is "clear that the plaintiff is merely speculating about the fact alleged and therefore has not shown that it is plausible that the allegation is true"). The online correction merely states "the statement was made when Green's allegations first surfaced in 2005." Nem. re: Mot. to Am., Ex. C.) This does not rule out the possibility, consistent with paragraph 34 of the SAC, that although Phillips originally "made" the statement in 2005, he also provided or directed the same statement to the Washington Post in 2014 in response to Green's more recent public accusations. See 12 EFTA01093265  Case 3:14-cv-30211-MGM Document 89 Filed 10/09/15 Page 13 of 38 Shively v. Botanic)), 80 P.3d 676, 683 (Cal. 2003) ("The rule that each publication of a defamatory statement gives rise to a new cause of action for defamation applies when the original defamer repeats or recirculates his or her original remarks to a new audience."). The discovery process may very well bear this issue out and sharpen the parties' arguments on this point, but at this stage the court must resolve all reasonable inferences in Plaintiffs' favor.10 Dismissal of a portion of Plaintiff Green's claim based on a correction made to the Washington Post article is not warranted on statute of limitations grounds. Most importantly, even if Defendant's reading of the correction were accurate and the court dedined to accord paragraph 34 of the SAC the presumption of truth, Defendant's statute of limitations argument would still fail based on Plaintiffs' theory asserted in paragraph 35 of the SAC. As discussed, Plaintiffs allege in paragraph 35, "[]n addition, or in the alternative, to paragraph 34," that Phillips "originally published" the statement in 2005 "with the expectation and intent" that the statement be republished if Plaintiff Green's allegations were reported again in the future. (SAC 1 35.) "In general, the repetition by a new party of another person's earlier defamatory remark also gives rise to a separate cause of action for defamation against the original defamer, when the repetition was reasonably foreseeable." Shively, 80 P.3d at 683; see also Mitchell P. Superior Court, 690 P.2d 625, 633 (Cal. 1984) ("According to the Restatement (Second) ?Torts (1977) section 576, the original defamer is liable if either `the repetition was authorized or intended by the original defamer' (subd. (b)) or `the repetition was reasonably to be expected' (subd. (c)). California decisions follow the restatement rule."); Schneider v. United Airlines, Inc, 256 Cal. Rptr. 71, 74 (Cal. Ct. App. 1989) ("[T]he originator of the defamatory matter can be liable for each `repetition' of the defamatory matter by a second party, 'if he could reasonably have foreseen the repetition."' (quoting Mclanny v. Cry. ofSanta Clam, 168 Cal. Rptr. 89, 93 (Cal. Ct. App. 1980))). "It is the foreseeable subsequent 10 The court notes that, if it were to consider both the online and print versions of the correction notices, the slightly different wording between the two, which may well be innocuous, could arguably raise questions about the manner in which the ratbillM11 Ng came to include the Phillips statement in the article, further demonstrating the benefit in allowing the parties to engage the discovery process to seek clarification of these factual issues; the need for fact clarification is not a basis for dismissal at this stage. 13 EFTA01093266  Case 3:14-cv-30211-MGM Document 89 Filed 10/09/15 Page 14 of 38 repetition of the remark that constitutes publication and an actionable wrong in this situation, even though it is the original author of the remark who is being held accountable." Shiveb, 80 P.3d at 683. The court does not agree with Defendant's assertion that, under the "single publication rule," Plaintiff Green's defamation claim accrued exclusively in 2005 and the limitations period did not reset upon the issuance of the November 22, 2014 Washington Post article. In Shin*, the California Supreme Court extensively set forth the history and rationale of the single publication rule. The court explained: Under the common law as it existed in the 19th century and early part of the 20th century, the principle that each communication of a defamatory remark to a new audience constitutes a separate "publication," giving rise to a separate cause of action, led to the conclusion that each sale or delivery of a copy of a newspaper or book containing a defamation also constitutes a separate publication of the defamation to a new audience, giving rise to a separate cause of action for defamation. ... This conclusion had the potential to subject the publishers of books and newspapers to lawsuits stating hundreds, thousands, or even millions of causes of action for a single issue of a periodical or edition of a book. This conclusion also had the potential to disturb the repose that the statute of limitations ordinarily would afford, because a new publication of the defamation could occur if a copy of the newspaper or book were preserved for many years and then came into the hands of a new reader who had not discovered it previously. The statute of limitations could be tolled indefinitely, perhaps forever, under this approach. Id. at 683-84 (internal citations omitted). In response to these concerns, "courts fashioned what became known as the single-publication rule, holding that, for any single edition of a newspaper or book, there was but a single potential action for a defamatory statement contained in the newspaper or book, no matter how many copies of the newspaper or the book were distributed." Id. at 684." Critically, however, "Notwithstanding the single-publication rule, a new edition or new issue of a newspaper or book still constitutes a new publication, giving rise to a new and separate cause of action and a new accrual date for 11 California has adopted the Uniform Single Publication Act, codifying the single publication rule at Cal. Civ. Code § 3425.3. That section provides: No person shall have more than one cause of action for damages for libel or slander or invasion of privacy or any other ton founded upon any single publication or exhibition or utterance, such as any one issue of a newspaper or book or magazine or any one presentation to an audience or any one broadcast over radio or television or any one exhibition of a motion picture. Recovery in any action shall include all damages for any such ton suffered by the plaintiff in all jurisdictions. 14 EFTA01093267  Case 3:14-cv-30211-MGM Document 89 Filed 10/09/15 Page 15 of 38 the purpose of the statute of limitations." Id. at 685 n.7; see also id at 685 ("Accrual at that point is believed to provide adequate protection to potential plaintiffs, especially in view of the qualification that repetition of the defamatory statement in a new edition of a book or newspaper constitutes a new publication of the defamation that may give rise to a new cause of action, with a new accrual date."). Therefore, if Green had asserted a claim based merely on the original 2005 article containing Phillips' statements, the single publication rule would operate to bar such a claim because accrual would have occurred "on the `first general distribution of the publication to the public."' Id. at 685 (quoting Be/li v. Roberts Bros. Furs, 49 Cal. Rptr. 625, 629 (Cal. Ct. App. 1966)). Because Green's claim is instead based on the November 22, 2014 Irathington Post article, an entirely different issuance, the single publication rule does not apply. See id. at 685 & n.7; Schneider, 256 Cal. Rptr. at 74-75 ("Illhe single publication rule ... does not include separate aggregate publications on different occasions."' (quoting Komarek r. Bngliosi, 166 Cal. Rptr. 526, 530 (Cal. Ct. App. 1980))); g Christof Nestle USA, Inc, 213 P.3d 132, 138 (Cal. 2009) ("The prefatory note to the uniform act states that under the single-publication rule any single integrated publication, such as one edition of a newspaper or magazine, or one broadcast, is treated as a unit, giving rise to only one cause of action."' (quoting Unif. Single Publ'n Act, 14 U.LA. 469 (2005))). Accordingly, Defendant has not established that Plaintiff Green's claim based on the November 22, 2014 Irasbittgion Post article is barred by California's statute of limitations and, consistent with paragraph 35 of the SAC, he may be held liable for the foreseeable republication of Phillips' 2005 statement. See Shieefr, 80 P.3d at 683. Accordingly, the court will not dismiss any portion of Plaintiff Green's daim based on a single publication theory that the statute of limitations has expired. C. Adequacy of Plaintiffs' Defamation Allegations Having determined the laws of California and Florida are applicable and that the claim related to the Washington Post Statement is not barred by the statute of limitations, the court next considers the substance of Plaintiffs' defamation claims. Both California and Florida recognize the following essential 15 EFTA01093268  Case 3:14-cv-30211-MGM Document 89 Filed 10/09/15 Page 16 of 38 elements of defamation: (1) a publication; (2) that is false; (3) defamatory, meaning damaging to the good reputation of the person who is the subject of the statement; (4) made by an actor with the requisite degree of fault; (5) is not protected by any privilege; and (6) causes injury to the subject.12 See, e.g., Jews ForJesus, Inc. P. Rapp, 997 So. 2d 1098, 1106 (Fla. 2008); Taus v. Lorna, 151 P.3d 1185, 1209 (Cal. 2007), abrogated on other grounds b, Oasis West Rea/p, LLC P. Goldman, 250 P.3d 1115 (Cal. 2011); Blau), v. N.Y. Times Co., 728 P.2d 1177, 1182-83, 1186 (Cal. 1986). Defendant moves to dismiss Plaintiffs' claims, alleging inadequacies related to several of these elements. These challenges can generally be organized as follows. First, Defendant asserts that none of the allegedly defamatory statements contain false factual assertions that are also defamatory. As pan of this argument, Defendant specifically asserts the claim based upon the November 20, 2014 Statement regarding Plaintiff Traitz fails because the statement was substantially true and the claims based upon the November 21, 2014 Statement fail because that statement was not sufficiently "of and concerning" Plaintiffs Traitz or Serignese. Second, Defendant argues he cannot be liable for defamation because Plaintiffs have failed to plead that either Defendant or his agents acted with the constitutionally required degree of fault. Third, Defendant argues the November 20, 2014 Statement did not cause Plaintiff Traitz to suffer incremental harm. Fourth, Defendant asserts the allegedly defamatory statements are protected by a "self-defense privilege." The court addresses these arguments in turn. 1. The Statements: Factual True Defamatory Of and Concerning In order for a defamation claim to survive a motion to dismiss, the allegedly defamatory statement must contain at least one false factual assertion which is also defamatory. See, e.g., Jews ForJesus, Inc, 997 So. 2d at 1106; Taw, 151 P.3d at 1209. Depending on the nature of the statement and the context in which it was made, courts will place different emphasis on these two components. In this case, Defendant argues three of the four statements at issue do not contain factual assertions that are false, or even capable of being 12 Relevant differences which may exist between California and Florida law regarding defamation are addressed as applicable throughout this Discussion. 16 EFTA01093269  Case 3:14-cv-30211-MGM Document 89 Filed 10/09/15 Page 17 of 38 false." Defendant further asserts that even if the statements can be understood as expressing false factual assertions, they are not defamatory because they do not hold Plaintiffs "'up to contempt, hatred, scorn, or ridicule or tend to impair [their] standing in the community."' (Def.'s Mem. 14-15 (quoting Yobe v. Nugent, 321 F.3d 35, 40 (1st Cir. 2003)).) The court addresses each statement individually, applying California law to the Newsweek Statement regarding Plaintiff Green and Florida law to the November 20, 2014 and November 21, 2014 Statements as to one or both of Plaintiffs Traitz and Serignese. Before delving into the state-specific analysis, the court considers the Supreme Court case law applicable to defamation cases in which the parties dispute whether a statement contains actionable statements of fact or protected statements of opinion. In Milkovich o. Lorain Journal Co., the Supreme Court reviewed the history of the tort of defamation and development of constitutional protections to ensure the tort does not interfere with "the freedom of expression guaranteed by the First Amendment" 497 U.S. 1, 21 (1990). The Court reviewed existing constitutional requirements, including that plaintiffs must (a) establish the requisite level of fault on the part of a defendant and (b) allege a statement that can "'reasonably [be] interpreted as stating actual facts' about an individual." Id. at 20 (quoting Hustles-Magazine, Inc. n Paling 485 U.S. 46, 50 (1988)). The Court considered whether to create an additional constitutional privilege for "anything that might be labeled `opinion."' Id at 18. In dedining to adopt such a privilege, the Court explained there is not a clear division between statements of opinion and fact. "If a speaker says, tin my opinion John Jones is a liar,' [the speaker] implies a knowledge of facts which lead to the conclusion that Jones told an untruth" and, as a result, such a statement may imply a false assertion of fact by failing to state what it was based on or because any facts referenced are incorrect or incomplete. Id The Supreme Court directs courts to determine "whether a reasonable factfinder could conclude that the [allegedly defamatory] statements . . . imply an assertion [of fact]" and whether that assertion "is sufficiently factual to be to Defendant makes this argument as to the Newsweek Statement, the November 20, 2014 Statement, and the November 21, 2014 Statement, but not as to the Washington Post Statement. 17 EFTA01093270  Case 3:14-cv-30211-MGM Document 89 Filed 10/09/15 Page 18 of 38 susceptible of being proved true or false," rather than simply determine whether a statement expresses an opinion or asserts a fact. Id. at 21. At this stage of the litigation, the court's concern is whether any fact contained in or implied by an allegedly defamatory statement is susceptible to being proved true or false; if so capable, Defendant cannot avoid application of defamation law by claiming the statement expresses only opinion. See Ferlauto r. Harsher, 88 Cal. Rptr. 2d 843, 849 (Cal. Ct. App. 1999); Zambrano v. Devanesan, 484 So. 2d 603, 606 (Fla. Dist. Ct. App. 1986). Ultimately, if Plaintiffs' claims survive this initial challenge, Defendant will have the opportunity, at the procedurally appropriate time, to fully develop a defense based on the truth of the facts contained i