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Case 2:16-cv-00305-MSD-RJK Document 28 Filed 01/05/17 Page 1 of 20 PageID# 177

FILED
JAN - 5 2017

UNITED STATES DISTRICT COURT


EASTERN DISTRICT OP VIRGINIA

c^b.^.DisiHici^uUkr

Norfolk Division

MQRFOLK. VA

JASON DANGERFIELD,

Plaintiff,
Civil No.

V.

WAVY BROADCASTING, LLC,


LIN TELEVISION CORPORATION,
MEDIA GENERAL BROADCASTING,

2:16cv305

and
LLC,

Defendants.

OPINION AND ORDER

This

filed

matter

by

is

before

Defendants

Television

the

WAVY

Corporation

Court

on

Broadcasting,

("Lin

Motion

LLC

Television"),

to

Dismiss

("WAVY"),

and

Media

Lin

General

Broadcasting, LLC^ ("Media General," and collectively with WAVY


and

Lin

Television,

Jason Dangerfield,
statements
Plaintiff
Compl.,

made

ECF No.

ECF

No.

10.

Plaintiff,

alleges in his Second Amended Complaint that

or

seeks

"Defendants").

ratified

$3,000,000

by
as

Defendants
compensatory

constituted
damages.

libel.
2d

26.

I.

FACTUAL AND PROCEDURAL BACKGROUND

The instant claim arises

from statements allegedly made or

ratified by Defendants on or about June 24 and/or June 25,

'

By

Court

Am.

order.

Defendant's

name

was

corrected

Broadcasting, Inc." to "Media General Broadcasting, LLC."

from

"Media

ECF No. 25.

2015.

General

Case 2:16-cv-00305-MSD-RJK Document 28 Filed 01/05/17 Page 2 of 20 PageID# 178

According

to

Plaintiff,

television station,

Defendants,

WAVY-TV Channel

by

10

WAVY website at http://www.wavy.com,

and

through

{"WAVY-10"),

their

and on the

broadcast a report falsely

stating that Hampton police arrested Plaintiff on an accusation


of rape.

Defendants allegedly reported:

Hampton police have arrested a man accused of rape.


According to a warrant, 35-year-old Jason Dangerfield
raped a woman inside of her car. It happened back in
May while the car was parked on Jefferson Avenue in
Newport News.
The victim was taken to a
local
hospital. No further information has been released.
Compl.

Ex.

broadcast.

1,

ECF

Id.

No.

1.

Plaintiff's

Plaintiff

asserts

and constitutes libel per se,

photo

that

the

appeared

broadcast

in

is

libel, and libel per quod.

the

false

2d Am.

Comp. H 21-26.
Plaintiff filed a Complaint in this Court on June 17, 2016,

asserting that the Court has diversity jurisdiction and alleging


libel

occurring

defamatory
Libel,

in

this

statement made

Black's

judicial
in a

Law Dictionary

district

based

permanent medium.
927

{7th Ed.

upon

ECF No.

1;

1999).

Plaintiff

amended his Complaint on June 24, 2016.

ECF No. 4.

On July 29,

2016,

to

Plaintiffs'

Defendants

filed

Amended Complaint,
12(b)(6).

ECF

No.

joint

motion

dismiss

pursuant to Federal Rule of Civil Procedure


9.

Plaintiff

filed

Defendants' motion to dismiss on August 9,

response

2016,

Defendants filed their reply brief on August 15,

brief

ECF No. 17,

2016,

to
and

ECF No.

Case 2:16-cv-00305-MSD-RJK Document 28 Filed 01/05/17 Page 3 of 20 PageID# 179

18.

On October 21,

2016,

Plaintiff requested to file a

Amended Complaint in order to correct a

On the same day.

misnomer.

Second

ECF No.

19.

Defendants requested a hearing on their motion

to dismiss, ECF No. 21, to which Plaintiff responded on November


2,

2016,

ECF No.

23.

On November 4,

opposition to Defendants'
On

November

8,

the parties,

2016,

request

2016,

for a

in accordance

Plaintiff

hearing.

with the

filed

ECF No.

an

24.

agreement between

the Court granted Plaintiff's motion to amend and

directed the Clerk to file Plaintiff's Second Amended Complaint,


correcting

the

Defendants'

misnomer

previous

of

motion

party

to

name,

and

dismiss

responsive to the Second Amended Complaint.

providing

would

be

ECF No.

that

deemed

25.

Thus,

pending before the Court are Defendants' motion to dismiss under


Rule 12(b)(6), ECF No.
on

the

motion

to

9,

and Defendants'

dismiss,

ECF

No.

request for a hearing

21.

Having

been

fully

briefed, these matters are ripe for review.


II.

STANDARD OF REVIEW

A complaint must contain "a short and plain statement of


the claim showing that the pleader is entitled to relief."
R.

Civ.

P.

8(a)(2).

"to

Fed.

A motion to dismiss may be granted when a

complaint

fails

state

claim

granted."

Fed. R. Civ. P. 12(b)(6).

upon

which

relief

can

be

A complaint fails to state

a claim if it does not allege "enough facts to state a claim to


relief

that

is

plausible

on

its

face."

Bell

Atl.

Corp.

v.

Case 2:16-cv-00305-MSD-RJK Document 28 Filed 01/05/17 Page 4 of 20 PageID# 180

Twombly,

be

550 U.S.

detailed,

544,

570

(2007) .

Though a

complaint need not

"[f]actual allegations must be enough to raise a

right to relief above the speculative level."


Ashcroft V.

Iqbal,

556 U.S.

A motion to dismiss

662,

678

(2009).

tests

the

sufficiency of

without resolving factual disputes,


accept as true all of the
complaint'

and

plaintiff.'"
Cty.,

Nemours & Co. v.

Although

district

courts

from

the

the

are

(4th Cir.

facts"

and

unreasonable

Mkts.,

V. Assocs.

Inc.

2000); s^ Iqbal,

2012)

complaint

facts

P'ship,

556 U.S. at 678

v.

the

Montgomery

"legal

or

440

{4th Cir.

alleged is presumed,

accept

conclusions,

Ltd.

Dep't

637 F.3d 435,

the

not

in favor of

{quoting E.I, du Font de

bound by the

"need

inferences,

Fire

Inc.,

truth of

not

inferences

Volunteer

Kolon Indus.,

2011)).

see

factual allegations contained in the

Kensington
467

at 555;

and a district court "'must

'draw all reasonable

684 F.3d 462,

Id.

as

conclusions
true

unwarranted

arguments."

213 F.3d 175,

E.

180

(citing Twombly,

drawn

Shore

(4th Cir.

550 U.S. at

555) .
III.

According

to

defamation because

Plaintiff

with

defamatory.
dismiss.

Plaintiff,

DISCUSSION

Defendants'

broadcast

"Defendants intended to,

being

rapist,"

2d Am. Compl. 1 14.

Defendants

argue

that

which

and did,

was

both

constituted
charge the

false

and

In support of their motion to


their

broadcast

is

not

an

Case 2:16-cv-00305-MSD-RJK Document 28 Filed 01/05/17 Page 5 of 20 PageID# 181

actionable statement for a defamation claim under Virginia law^


because:

(A) Defendants' report that police accused Plaintiff of

rape

substantially accurate;

is

{B)

the

inaccuracy concerning

Plaintiff's arrest is too minor to support a


and

(C)

Defendants'

broadcast

substantially accurate

is

defamation claim;

privileged

summary of a

public

as

fair

record.

The

and
Court

will address each argument in turn.


A.

Defendants
actionable

Plaintiff

was

as

of

argue

that

defamation

being a

"accused of

because

rapist,

rape,"

the

which

broadcast
the

but

report

broadcast

did

not

rather stated that

is an accurate

is

not

accuse

Plaintiff

statement because

Plaintiff was accused of rape by the Newport News police and by


the

victim.

alleges

Plaintiff

that

Defs.'

Opening

"Defendants

with

being

Br.

1,

ECF

intended

to,

rapist,"

2d

No.

and

did,

Am.

Compl.

accusation that is "both false and defamatory,


neither arrested for rape

10.

Plaintiff
charge

H 14,

the

an

as Plaintiff was

nor was he accused of rape by

the Hampton Police Department," Pl.'s Resp. Br. 4.

Under Virginia law,


of defamation first

"a private individual asserting a claim

must show that a

defendant has published a

^ A federal court exercising diversity jurisdiction applies the substantive


law

of

the

forum

state.

Hanna

Virginia is the forum state,


of

v.

Plumer,

380

U.S.

460,

465

(1965) .

As

the Court applies Virginia law in its analysis

P l a i n t i f f ' s defamation claim.

Case 2:16-cv-00305-MSD-RJK Document 28 Filed 01/05/17 Page 6 of 20 PageID# 182

false factual statement that concerns and harms the plaintiff or


the

plaintiff's

Co.,

reputation."

670 S.E.2d 746,

Hyland v.

750

(Va.

under Virginia law are:

"(1)

statement

with

Ridder,

Inc.,

Gazette,

Inc.

challenge

(3)

the

993
v.

F.2d

1087,

arguing

1092

statement

defamatory.

Chapin,

is

Cir.

{Va.

that

an actionable

Chapin v.

(4th

Knight-

1993}

1985)).

the

constitute "an actionable statement."


actionable

(2)

intent."

325 S.E.2d 713

two,

Servs.

The elements of defamation

publication of

requisite

Harris,

element

2009).

Raytheon Tech.

{citing

Defendants

broadcast

does

Defs.' Opening Br.

statement

that

is

both

not

6.

An

false

and

993 F.2d at 1092.

Plaintiff first alleges that the broadcast allegations are

false.

2d

Am.

Compl.

15.

To

demonstrate

falsity,

the

plaintiff must allege that the defendant made a

"provably false

factual

knew

statement []"

statement was
lacked a

false

and

or,

that

"the

defendant

believing that

the

reasonable basis for such belief,

that

statement was

the

true,

or acted negligently

in failing to detennine the facts on which the publication was


based."

Hyland,

670

S.E.2d

at

750.

statement about which the facts are not


contain more

F.2d at 1092.

defamatory
where

the

than mere

"irrelevant

Moreover,

*sting'

of

false

inaccuracies."

publication

alleged defamatory

'sting'

is

"substantially true" or

"[t]he falsity of a

the

statement

must

arises

Chapin,

993

statement and the

coincidethat
from

is,

substantially

Case 2:16-cv-00305-MSD-RJK Document 28 Filed 01/05/17 Page 7 of 20 PageID# 183

true

facts,

the plaintiff may not

inaccuracies
dismiss

claim for
on

the

libel."
basis

Id.

that

irrelevant

On a

motion to

statement

is

not

the court must "credit the plaintiff's allegation of

factual

falsity

defamation suit

actionable,
the

to state

rely on minor or

falsity of a

is

vague

and

statement,"

conclusory

unless

or

the

allegation of

contradicts

document incorporated into the complaint.

Id.

an

external

(citing Conley v.

Gibson, 355 U.S. 41 (1957)); s ^ E.I, du Font, 637 F.3d at 448.


Defendants'
(1)

broadcast consists of basically two assertions:

that Plaintiff was accused of rape,

was arrested for


police

have

Plaintiff,

rape.

See

arrested a

man

both assertions

2d Am.

not commit the crime of rape,


even if he was accused,

false

(2)

Compl.

accused of
are

and

at

that Plaintiff

H 11

rape.").

because

("Hampton

According

Plaintiff

to

(1)

did

(2) was never accused of rape,

(3)

was not accused by the Hampton Police,

as reported by Defendants,

and

(4)

was never arrested for rape.

Id. at nil 11, 14.


Defendants first argue that the broadcast did not directly
accuse

Plaintiff

of

rape,

and

the

interpreted beyond its plain meaning.


is

"general

rule

that

broadcast

cannot

be

Defs.' Opening Br. 7.

It

allegedly defamatory words

taken in their plain and natural meaning."


Newspapers,

82

S.E.2d

588,

591-92

(Va.

are

Carwile v.

1954).

be

Richmond

Moreover,

meaning of the alleged defamatory language can not,

to

"the

by innuendo.

Case 2:16-cv-00305-MSD-RJK Document 28 Filed 01/05/17 Page 8 of 20 PageID# 184

be extended beyond its ordinary and common acceptation."


Defendants'

rape."

broadcast

2d Am.

beyond the

stated

Compl.

II

that

11.

Plaintiff

was

"accused

Plaintiff may not

"plain and natural"

Id.
of

extrapolate

meaning of words to claim that

Defendants' broadcast stated that Plaintiff was a "rapist."

See

Carwile,

"fair

and

proceedings

is

82

S.E.2d

at

591-92.

Further,

accurate"

newspaper

privileged,

Times-Dispatch Publ'g Co. v.

(Va.

1927),

report

Defendants'

of

report

because

criminal

that

Zoll,

139 S.E.

Plaintiff was

505,

507

"accused of

rape" by police is privileged if substantially accurate.


Next,

by

the

Defendants argue

Newport

broadcast

News

cannot

police

be

To

support

and

actionable

substantially accurate.^

'

that

this argument,

Plaintiff was

by

the

as

defamation

See Defs.'

accused of

victim,

and

thus

because

Opening Br.

rape

7.

the

it

Plaintiff

Defendants attach to their opening brief

warrant papers referenced by Plaintiff.

Defs.' Opening Br., Ex, A,

Aff.

Search

On

''a

Warrant,

at

2,

ECF

No.

10-1.

motion

to

dismiss,

evaluates the complaint in its entirety, as well as documents


incorporated into the complaint."
E.I, du Pont, 637 F.3d at
Sec'y of State for Defence v.

Trimble Navigation Ltd.,

is

the
for

court

attached or
448 (citing

484 F.3d 700,

705

(4th

Cir. 2007)).
When a document is "integral to and explicitly relied on in the
complaint," and the opposing party does not challenge the authenticity, a

court may consider a document outside the complaint when evaluating a motion
to dismiss.
Id. at 448 (quoting Phillips v. LCI Int'l Inc., 190 F.3d 609,
618 (4th Cir. 1999)).
Although Plaintiff did not attach the warrant papers
to his complaint, he explicitly references the warrant and alleges that it
was reckless of Defendants to report that Plaintiff had been arrested for
rape when a simple Internet search would have shown otherwise.
2d Am. Compl.

^ 15 ("[T]he Newport News Police Department issued a search warrant . . . . A


check

by

the

information

Defendants

would

have

with

any

revealed

one

of

Plaintiff

the
had

several
not

sources

been

of

arrested

such
for

rape. . .").
Finally, when an external document that is incorporated into
the complaint conflicts with Plaintiff's allegations, the external document
controls.
See Fayetteville Inv'rs v. Commercial Builders, Inc., 936 F.2d

1462, 1465 {4th Cir. 1991)

(citing 2A Moore's Federal Practice,

10-24).

considers

Thus,

the

Court

the
8

warrant

papers

in

^ 10.06, p.

resolving

the

Case 2:16-cv-00305-MSD-RJK Document 28 Filed 01/05/17 Page 9 of 20 PageID# 185

alleges

that

he

alternatively,

was

While

formally

the

Black's

Defs.'
No.

who

Law

Plaintiff

on

has

the

criminal

been

("Ex.

detectives

of

mean

for

ed.

A,

Aff.

someone
it

Police

"consistent"

the
with

also

alleges

has

broadly

wrongdoing."

2014).

the

Police

warrant

been
means

Accused,
"blamed"

papers.

for Search Warrant,

Detective

an

warrant
the

"corroborated through
Plaintiff

who

Br.

at

See
2,

ECP

In his affidavit in support of the search

completed

to

and

Pl.'s Resp.

M.

R.

Punter

investigation

which

Plaintiff had nonconsensual sex with the victim.^


according

rape,

he was never accused by

charges,

blamed
(10th

Ex,

A").

Master

may

wrongdoing-rape-in

Opening Br,,

warrant.

"accused"

Dictionary

for

10-1

accused

as reported by Defendants.

word

indicted

"[s]omeone

formally

even if he was accused,

the Hampton Police,


4.

never

papers,

detective's

[the]

that

the

the

victim's

Id,

false

police never actually accused him of rape,

that

Moreover,

statements

Id.

was

that

showed

investigation

investigation."
statement

stated

were

and

were

Thus,

while

because

Pl.'s Resp.

the

Br.

4,

the warrant papers show that the Newport News police explicitly

pending motion to dismiss because Plaintiff himself relies upon the warrant

papers and does not challenge their authenticity.


Pl.'s Resp.

Br.

(referring

to the

See 2d Am.

search warrant

issued for

Compl.

II 15;

Plaintiff's

DNA) .

The affidavit stated: "Detectives conducted an investigation which revealed

that on May 17, 2015, sometime between 0100-023 0 hours [Plaintiff] inserted
his penis into [the victim's] vagina without her consent.
[Plaintiff]
continued to have vaginal sexual intercourse with [the victim] without her
consent."

Ex.

at

2.

Case 2:16-cv-00305-MSD-RJK Document 28 Filed 01/05/17 Page 10 of 20 PageID# 186

blamed Plaintiff for rape and requested a search warrant on the


basis of that accusation, Ex. A at 2.

Because the Newport News police blamed Plaintiff for rape

in the search warrant papers, Defendants' broadcast report that


Plaintiff was "accused of rape"
thus

is substantially accurate,

is not an actionable statement of defamation.

Plaintiff

fails

to explain how

any

and

Moreover,

"defamatory sting"

arises

from the misidentification of the police department as Hampton


instead

of

Newport

News.

See

Chapin,

993

F.2d

at

1092

(requiring that "[t]he falsity of a statement and the defamatory


'sting'

of

the

publication

substantially true

defamation).

statement

is

must
not

coincide"

because

an actionable

statement of

Therefore, because the Newport News police accused

Plaintiff of rape and because Plaintiff fails to explain how any


defamatory sting arises from the misidentification of the police
department,
rape

is

the broadcast report that Plaintiff was "accused" of

not

actionable

as

defamation

because

the

assertion

is

substantially accurate.
Last,

Plaintiff

alleges

stating that

Plaintiff

H 11.

Newport

The

warrant for

never

was

News

that

the

arrested

Police

for

Nevertheless,

for

nearly

the
two

alleged
weeks
10

rape.

Department

Plaintiff's DNA on June 11,

arrested

broadcast

2015,

rape.

later,

was

false

2d Am.

issued

in

Compl.

search

but Plaintiff was

Id.

Defendants

at

15.

published

Case 2:16-cv-00305-MSD-RJK Document 28 Filed 01/05/17 Page 11 of 20 PageID# 187

broadcast
accused

stating
of

that

rape,"

"Hampton

referring

police

to

have

arrested

Plaintiff.

Id.

man

at

H 11.

Defendants appear to agree that the report of Plaintiff's arrest

was inaccurate.

Defs.'

Opening Br.

resolving

the

pending

"credit[s]

. . .

8.

motion

Thus,

to

for purposes of

dismiss,

the

Court

Plaintiff's allegation of the factual falsity"

of the report of arrest.

See Chapin,

For the above stated reasons.

993 P.2d at 1092.

Defendants'

motion to dismiss

the portion of Plaintiff's claim that is based upon the report


that

Plaintiff

report

is

was

accused

substantially

of

rape

is

accurate,

actionable statement of defamation.

GRANTED,

and

because

therefore

Therefore,

not

"Count I;

the

an

Libel

Per Se" and "Count III: Libel Per Quod," are DISMISSED, because
both

counts

accused

of

arise

from

rape.

depends upon the

Defendants'

Likewise,

report

that

any

statement

portion

Plaintiff was

that

of

Plaintiff

Count

II

accused of

was

which

rape

is

DISMISSED.

While the Court credits Plaintiff's allegation that

the

of

report

his

arrest

was

false,

it

must

still

address

Defendants' argument that i t was not defamatory.


B.

was

Defendants

argue

"arrested"

is

that

not

an

the

broadcast

actionable

report

statement

that
of

Plaintiff
defamation

Plaintiff's complaint lists "Count II: Libel Per Se" and "Count II: Libel."
2d Am. Compl, 8.
The designation of "Libel Per Se" as Count II is assumed to
be a typographical error, and the Court refers to "Libel Per Se" as "Count I:
Libel

Per Se."
11

Case 2:16-cv-00305-MSD-RJK Document 28 Filed 01/05/17 Page 12 of 20 PageID# 188

because,

while

Opening Br.

it may be

8.

false,

it is not defamatory.

In addition to being false,

defamatory in order to be actionable.

Unlike

falsity,

"[t]he

question

Defs.'

statement must be

Chapin,

993 F.2d at 1092.

[of]

whether

statement

is

capable of having a defamatory meaning is a question of law to


be decided by the court."
320,

330

(4th Cir.

S.E.2d 136, 138

that

meaning,

is

or (2)

with

the

N.Y.

(citing Yeagle v.

(Va. 1998)).

statement

defamatory"),

2005)

Hatfill v.

Times Co.,

Collegiate Times,

defamatory

as

matter

of

law

("per

se

that a statement is capable of a defamatory


jury

ultimately

determining

whether

See id.

statement

or

is

497

The Court may determine either (1)

statement harmed the Plaintiff's reputation.

that

416 F.3d

either

defamatory

per

se

the

A false

capable

of

defamatory meaning and that harmed the Plaintiff's reputation is


an

actionable

statement

of

defamation.

Chapin,

993

F.2d

at

1092.

In
Yeagle,

per

Virginia,

some

statements

497 S.E.2d at 138.

se,

"Virginia

law

Once a

presumes

are

not

ITT

Corp.

1071

have

that

{4th

Virginia

to present proof of

Electro-Optical,

Cir.

1993)

recognizes

*741

(citing

four

the

plaintiff

therefore,

se.

Products

categories

of

Div.,

275

per

suffered

[the plaintiff]

such damages."

Fleming,

12

per

plaintiff proves defamation

actual damage to its reputation and,


does

defamatory

Swengler v.

993

F.2d

S.E.2d

se

at

1063,

636).

defamation:

Case 2:16-cv-00305-MSD-RJK Document 28 Filed 01/05/17 Page 13 of 20 PageID# 189

imputation of

criminal

offense,

imputation of

contagious

disease, imputation of unfitness for a job or lack of integrity,


or prejudice to the party in her profession or trade.
Vector Resources
In

"Count

II:

Group,

Ltd.,

Libel,"

485

S.E.2d

Plaintiff

makes

140,

no

144

Perk v.

{Va.

assertion

1997).

that

false report of his arrest constitutes defamation per se,

that it constitutes defamation.


If

the

damages,

for

meaning,

of

statement

is

Plaintiff

2d Am. Compl.

Swengler,

to

defamatory

993

allegation
because

F.2d

of

the

Plaintiff's

rape.

at

sufficiently

meaning

1071.

arrest

is

truth-that
DNAwould

reader"

allege

defamatory

and

than

capable

police

a
a

that

the

defamatory
search

different

that

has

Plaintiff

pled

416 F.3d at 33 0;

argue

of

executed

"have

stating

Plaintiff

See Hatfill,

Defendants

not

not

that

effect

was

false

meaning

warrant
on

the

for
mind

arrested

for

Defs.' Opening Br. 8; see Masson v. New Yorker Magazine,

Inc.,

501 U.S.

false

unless

the

23-24.

the Court must find that the false statement is capable

having

the

only

not per se defamatory with presumed

actual damage to his reputation.

of

the

reader

496,
it

from

517

'would

(1991)
have

that

which

("[A]

statement is not considered

different

the

effect

pleaded

on

truth

the

mind

would

of

have

' To the extent that Plaintiff argues that the report that he was accused of
rape constitutes defamation per se, the Court need not address such arguments
in light of the Court's holding that the report that Plaintiff "was accused
of rape" is substantially accurate, and thus not an actionable statement of
defamation.

See supra Part A.


13

Case 2:16-cv-00305-MSD-RJK Document 28 Filed 01/05/17 Page 14 of 20 PageID# 190

produced.'"}
Problems
because

(quoting

138
a

(1980)).

false

defamatory

R.

Libel,

However,

report

meaning.

Sack,

of

Slander,

Defendants'

arrest

is

Times-Dispatch,

13 9

that

the

plaintiff

was

S.E.

reporting that plaintiff was


see

Vaughan

v.

News

Leader

arrested

105

of

at

fails

having

506

(noting

libelous to falsely

instead

the subject of a
Co.,

Related

argument

capable

that all of the parties agreed that i t was


report

and

F.2d

of

correctly

search warrant);

360,

363

{4th

Cir.

1939)

("Absolute accuracy in identifying a person charged with a

crime

is

necessary

suffer.");

193 9)

News

(holding

arrested was

in order

Leader

that

an

"entitled

Co.

that
v.

some

Kocen,

innocent person may not


3

S.E.2d

individual who was


to vindication"

for

385,

wrongly
the

388

(Va.

reported as

violation

of

her

rights).
Next,

to

plead

actual

damage

to

reputation

statement that is capable of defamatory meaning,

based

upon

Plaintiff must

allege that Defendants made a statement that "tend[s]

so to harm

the reputation of another as to lower him in the estimation of

the

community

or

to

dealing with him."


marks

omitted).

plaintiff

deter

Chapin,

third

persons

993 F.2d at 1092

" [D]efamatory words

appear

odious,

from

infamous,

are
or

associating

(internal quotation

those

that

Merrell Dow and Pharmaceuticals,

F.

(D.D.C.

1252,

1254

1982)).
14

*make

ridiculous.'"

(quoting McBride v.

Supp.

Finally,

or

Inc.,

the
Id.
540

"[t]he falsity of

Case 2:16-cv-00305-MSD-RJK Document 28 Filed 01/05/17 Page 15 of 20 PageID# 191

statement and the defamatory

coincide."

Id.

Here,

*sting'

in "Count II:

of

Libel,"

that the false report of his arrest did,


public

scandal and ridicule,

humiliation
According

and

to

reputation,

mental

and has

he

has

hold him up to

caused him embarrassment,


2d

suffered

stating that Defendants'

Plaintiff alleges

in fact,

suffering.

Plaintiff,

the publication must

Am.
an

Compl.

actual

and will hold,

and have caused,

him up to public scandal,

are causing and will

humiliation and mental suffering."


Therefore,

because a

false

inj ury

to

statements "are causing and

will cause the Plaintiff injury to his reputation,

held,

24.

name and have

and/or ridicule,

cause him embarrassment,

Id.

report of arrest

is capable of

defamatory meaning and Plaintiff has pled actual damage to his

reputation.

Plaintiff has sufficiently alleged that Defendants'

report of Plaintiff's arrest is defamatory.

alleged
false

that

Defendants'

and defamatory.

actionable

statement

report

of

Plaintiff's

Plaintiff has pled a


of

Having sufficiently

defamation,

and

arrest

is

both

claim based upon an

Defendants'

motion

to

dismiss "Count II; Libel" on this ground is DENIED.


C.

Alternatively,
constitutes

an

Defendants argue that even if

actionable

statement

of

the broadcast

defamation.

Defendants

may not be held liable because the broadcast was privileged as a


substantially

accurate

report

of
15

public

record.

Defs.'

Case 2:16-cv-00305-MSD-RJK Document 28 Filed 01/05/17 Page 16 of 20 PageID# 192

Opening

Br.

"expressly
papers .

7.

According

states
.,

that

and a

[the broadcast's]

to

it

Defendants,

is

the

summarizing

broadcast

the

warrant

review of the warrant papers confirms that

summary of them was fair and accurate" because

Plaintiff was accused of rape by the police and the inaccuracy


regarding the false report of Plaintiff's arrest is not linked
to

the

argues

"defamatory
that

the

sting"

of

statement

is

was never arrested for rape,

the
not

broadcast.

Id.

Plaintiff

privileged

because

Plaintiff

and therefore the broadcast is not

a fair and accurate report of a public record.''

Pl.'s Resp. Br.

8-9.

Virginia

public

law

records:

recognizes

"The

privilege

publication

of

for

public

everyone has a right of access is privileged,

publication

records

to

of

which

if the publication

is a fair and substantially correct statement of the transcript


of

274,

the

record."

279

(Va.

Alexandria

1956).

Gazette

Corp.

v.

West,

93

S.E.2d

"'It is not necessary that the published

' Plaintiff additionally argues that, to the extent that Defendants' broadcast
was substantially accurate, any privilege that the Defendants may have
enjoyed was forfeited by Defendants'
"reckless disregard of the truth."
Pl.'s Resp. Br. 8-9.
Plaintiff notes that in the two weeks between the
issuance of the search warrant and the publication of Defendants' broadcast,

a
brief Internet search of the websites of the Newport News Police
Department, the Newport News Sheriff's Department, the Newport News Police
Department Information Office,
the Newport News Circuit Court,
and the
Newport News General District Court, would have shown that Plaintiff had not

been arrested for rape.

2d Am. Compl.

H 15.

Plaintiff argues that failing

to do a simple Internet search to verify the accuracy of the broadcast


constituted "gross indifference and recklessness as to amount to a wanton and
willful disregard of the Plaintiff's reputation."
Id. at H 16.
Because the
Court holds that the false report of Plaintiff's arrest is not substantially
accurate
and
therefore
not
privileged,
any
argument
with
respect
to
Defendants' abuse of privilege is moot.
16

Case 2:16-cv-00305-MSD-RJK Document 28 Filed 01/05/17 Page 17 of 20 PageID# 193

report be verbatim,
(quoting James v.

but it must be substantially correct.'" Id.


Powell,

152

S.E.

539,

545

(Va.

1930)).

The

need for substantial correctness extends to identifying persons


charged with criminal offenses.
noted

in

Kocen,

"[t]he

As the Virginia Supreme Court

fact

that

defendant

was

engaged

in

publishing the proceedings of a criminal case, which is a matter


of more or less public concern,

does not relieve it of the duty

of being fair and accurate in identifying persons charged with


criminal
court

offenses."

Kocen,

to determine,

as

while

it

Defendants

acted

with

privilege.

Alexandria Gazette,
has

S.E.2d

matter of

privileged,

Plaintiff

is

for

malice

alleged

at

law,

388.

whether a

jury

to

and

abused

own defamatory sting.

of

arrest

may

carry

or

279;

that

absolute

accuracy

Defendants'

See supra Part B.

its

own

Therefore,

false

Plaintiff's

of

the

exceeded

statement

Because a

sting,

the

that

K 11.

the

93 S.E.2d at

identity

for the above reasons.

17

Defendants'

(noting the importance of

reporting

arrest

false report

"fair and accurate

Alexandria Gazette,

correctly

person arrested).

report

is

whether

2d Am. Compl.

defamatory

105 F.2d 360 at 363


in

the

false report of arrest is capable of its

of the public record.

see Vaughan,

for

93 S.E.2d at 279.

broadcast cannot be privileged as it is not a


report"

is

statement

determine

Plaintiff was arrested is factually false.


As discussed above,

It

is

not

of

Defendants'

privileged,

and

Case 2:16-cv-00305-MSD-RJK Document 28 Filed 01/05/17 Page 18 of 20 PageID# 194

Defendants'

motion to dismiss "Count II:

Libel" on this ground

i s DENIED.
D.

Plaintiff

Court,

asserts

Defendants'

that,

failure

under

to

the

timely

Local

Rules

request,

or

of

this

waive,

oral

argument on Defendants' motion to dismiss results in such motion

being deemed "withdrawn."


Hearing on Mot.

7{E).

Pi's Resp. Br.

to Dismiss,

ECF No.

to Defs.' Request for

24;

E.D.

Va.

Loc.

Civ.

R.

The Local Rule relied on by Plaintiff, however, expressly

indicates

that

ordered."

Id.

such

Rule

is

applicable

The undersigned Judge,

"[u]nless

both

otherwise

through practice,

and through the "Procedure for Civil Motions" document published

on this Court's public website,


"[a]bsent a
not

request for a

discovery

chambers

for

related

has adopted a

hearing,"

"will

be

consideration.

Chambers of Mark S. Davis,

practice whereby

all civil motions that are


referred

Procedure

automatically"
for

Civil

to

Motions,

available at http://www.vaed.uscourts

.gov/localrules/Procedures%20for%20Civil%20Motions%20-%20Judge
%20Davis.pdf.

To the extent that such document is insufficient

to qualify as an "Order" under the Local Rule,


ORDERS
7(E)

that

the

withdrawal

provision

is inapplicable in this case.

18

set

this Court hereby

forth

in

Local

Rule

Case 2:16-cv-00305-MSD-RJK Document 28 Filed 01/05/17 Page 19 of 20 PageID# 195

IV.

For

dismiss

the

is

GRANTED

Defendants'

III:

motion

Likewise,

forth

part

to dismiss

which

and

that

motion

depends

Defendant's

DENIED

in

I:

Libel

part.

motion

ECF

Per Se"

No.

and

to

9.

"Count

because both counts arise from

Plaintiff

to

upon

accused of rape is GRANTED.

above.

"Count

is GRANTED,

statement

Defendants'

Libel"

set

in

Libel Per Quod,"

Defendants'

II:

reasons

CONCLUSION

was

dismiss

the

of

rape.

any portion of

"Count

report

Defendants'

accused

that

Plaintiff

was

motion to dismiss the

portion of "Count II: Libel" which depends upon the report that
Plaintiff was arrested for rape is DENIED.

Defendant's motion

for a hearing on the motion to dismiss is DENIED as MOOT.


No.

21.

The

Court

PROVIDES

Plaintiff

with

leave

Complaint to cure all defects within twenty one

the

ECF

entry of

adequately
Plaintiff's

this

amend
claims

Opinion and Order.

the

Complaint

will

within

If
the

to

(21)

period

19

the

days after

Plaintiff

be dismissed with prejudice

with this Opinion and Order.

amend

fails

to

prescribed.
consistent

Case 2:16-cv-00305-MSD-RJK Document 28 Filed 01/05/17 Page 20 of 20 PageID# 196

The Clerk is REQUESTED to send a copy of this Opinion and


Order to a l l counsel of record.
IT IS

SO ORDERED.

rmsB-

/S/
Mark S.

Davis

UNITED STATES DISTRICT JUDGE

Norfolk, Virginia

January M*

, 2017

20