Dangerfield V WAVY Broadcasting

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
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.
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.
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
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.
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
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.
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
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.
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
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
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:
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
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
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.'
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
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
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
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
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

Dangerfield V WAVY Broadcasting

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Dangerfield V WAVY Broadcasting

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

UNITED STATES DISTRICT COURT

WAVY BROADCASTING, LLC,

OPINION AND ORDER

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

alleges in his Second Amended Complaint that

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,

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

ECF No. 25.

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

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

broadcast a report falsely

stating that Hampton police arrested Plaintiff on an accusation

Defendants allegedly reported:

Hampton police have arrested a man accused of rape.

and constitutes libel per se,

libel, and libel per quod.

asserting that the Court has diversity jurisdiction and alleging

amended his Complaint on June 24, 2016.

pursuant to Federal Rule of Civil Procedure

Defendants' motion to dismiss on August 9,

Defendants filed their reply brief on August 15,

ECF No. 17,

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

Plaintiff requested to file a

Amended Complaint in order to correct a

On the same day.

Defendants requested a hearing on their motion

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

the Court granted Plaintiff's motion to amend and

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

responsive to the Second Amended Complaint.

pending before the Court are Defendants' motion to dismiss under

request for a hearing

briefed, these matters are ripe for review.

A complaint must contain "a short and plain statement of

A motion to dismiss may be granted when a

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

A complaint fails to state

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

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

complaint need not

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

right to relief above the speculative level."

without resolving factual disputes,

Nemours & Co. v.

556 U.S. at 678

637 F.3d 435,

{quoting E.I, du Font de

factual allegations contained in the

and a district court "'must

'draw all reasonable

684 F.3d 462,

213 F.3d 175,

"Defendants intended to,

2d Am. Compl. 1 14.

In support of their motion to

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^

(A) Defendants' report that police accused Plaintiff of