ORDER GRANTING DEFENDANT SCRIPPS MOTION TO DISMISS

Transcription

1 DISTRICT COURT, CITY & COUNTY OF DENVER, COLORADO 1437 Bannock Street Denver, Colorado DATE FILED: January 13, :22 AM CASE NUMBER: 2013CV33746 DAN LARSCHEID. D.D.S, and DAN LARSCHEID, D.D.S., P.L.L.C. Plaintiff v. SCRIPPS MEDIA, INC. D/B/A KMGH-TV, et al. Defendant COURT USE ONLY CASE: 13CV33746 COURTROOM: 280 ORDER GRANTING DEFENDANT SCRIPPS MOTION TO DISMISS Defendant Scripps Media, Inc. s Motion to Dismiss First Amended Complaint Pursuant to C.R.C.P. Rule 12(b)(5) filed October 23, 2013 is before the Court. After reviewing the pleadings, exhibits, and relevant authority, the Court is fully advised. Motions to dismiss for failure to state a claim are viewed with disfavor and should be granted only if it clearly appears that the plaintiff is not entitled to relief under the facts alleged in the complaint. Barnett v. Denver Pub. Co., Inc., 36 P. 3d 145, 147 (Colo. App. 2001). But, due to the threat of litigation having a chilling effect upon constitutionally protected speech, it is appropriate to resolve defamation actions quickly through motions for summary judgment or motions to dismiss. Id. In reviewing a motion to dismiss, the Court accepts all allegations of fact in the complaint as true and views them in the light most favorable to the plaintiff. Ridgeview Classical Sch. v. Poudre Sch. Dist. R-1, 214 P.3d 476, 479 (Colo. App. 2008). A complaint may only be dismissed if there is no set of facts under which the plaintiff would be entitled to relief. Nelson v. Nelson, 497 P.2d 1284, 1286 (Colo. 1972). When addressing a motion to dismiss, the Court may consider only the facts alleged in the Complaint, attached exhibits, documents incorporated by reference in the Complaint, and matters of which the Court may take judicial notice. Walker v. Van Laningham, 148 P.3d 391, (Colo. App. 2006). A document that is referred to in the complaint, even though not formally incorporated by reference or attached to the complaint, is not a matter outside the pleading. Thus, a document referred to in the complaint that is central

2 to the plaintiff's claim, may be considered on a motion to dismiss. Yadon v. Lowry, 126 P.3d 332, 336 (Colo. App. 2005). Although the Court may take judicial notice of the contents of its own records, it may not take judicial notice of a document prepared by an outside agency. People v. Cooper, 104 P.3d 307, 311 (Colo. App. 2004). As a preliminary matter, the Court must decide whether to consider Defendant s Exhibit A, which is a police report of the investigation into the disposal of patient records at issue in this case. Scripps argues that the Court can consider Exhibit A because it was incorporated by reference in Plaintiff s Amended Complaint and because the Court can take judicial notice of it. The Court disagrees. Because the police report itself is not referenced in the Complaint, it is not sufficiently incorporated by reference to allow the Court to consider it under Yandon, 126 P.3d at 336. Further, the police report was prepared by an outside agency and is not part of the Court s records. Therefore, the Court cannot take judicial notice of the contents of the police report. Cooper, 104 P.3d at 311. Accordingly, in ruling on the Motion the Court has not relied on Exhibit A. BACKGROUND The relevant facts viewed in the light most favorable to Plaintiff as alleged in the complaint and exhibits are as follows: In September 2011, Plaintiff sold his dental practice to Dr. Eric Walker. Some time later, a member of the public discovered records of Plaintiff s patients that had been discarded by an independent contractor of the dental practice. The Lone Tree police department investigated how these records had become public but did not investigate Plaintiff s role in the discarded records, and the investigation ultimately cleared Plaintiff. Plaintiff was never a subject of the Lone Tree police s investigation into the discarded patient records. On October 4, 2011, Scripps published a news report about the incident. The relevant statements from the report are reproduced below: Police Launch Investigation after 7News Exposes Dumped Dental Records 7News has learned the dentist who used to own that practice connected to the documents was disciplined once for unprofessional conduct. 7News traced the records back to this dental office in Lone Tree, Dentistry at the Crest. Dr. Daniel Larscheid sold the practice last month to another dentist Dr. Eric Walker. Lone Tree police confirm they re now investigating how the documents could have ended up more than 20 miles away. 7News dug into the history of both dentists. This record from Minnesota shows the state forced Dr. Larscheid to take course in proper management of patient records after - 2 -

3 he failed to properly store them. Dr. Walker, the new owner of [the practice] just moved to Colorado. Our checks showed no corrective actions against him here or in Washington State where he used to practice. Now, within the past hour, I did speak to Dr. Larscheid over the phone. He says the records were secure after he sold the clinic and blames the document dumping on the current dentist. We checked with the state, the issue for them to resolve here is whether or not the records were included in the sale. That will ultimately determine which dentist is responsible here. (Plaintiff s Exhibit 2) Plaintiff does not dispute the accuracy of the statements regarding his Minnesota disciplinary history. Scripps published the news report online. Shortly after the report was published, Plaintiff notified Scripps that he believed the story was inaccurate and requested that it be taken down. Scripps refused to remove the story. Plaintiff filed suit against Scripps on August 27, 2013 alleging defamation, outrageous conduct, disparagement, and intentional interference with prospective economic advantage. ANALYSIS Scripps argues that Plaintiff s claims should be dismissed for two reasons: (1) the claims are barred by the statute of limitations and (2) the statements are protected by the First Amendment to the United States Constitution and article II, section 10 of the Colorado Constitution. For the following reasons, the Court GRANTS the Motion: (1) Statute of Limitations Defendant argues that Plaintiff s defamation claim is subject to a one-year limitations period, which had expired before Plaintiff filed his Complaint and that Plaintiff s ancillary claims are also time barred because they are predicated on the defamation claim. Defamation A claim for defamation is barred unless it is asserted within one year from the time the cause of action accrues. C.R.S (1)(a); Burke v. Greene, 963 P. 2d 1119, 1121 (Colo. App. 1998). A defamation claim accrues when a plaintiff knows or should know in the exercise of reasonable diligence that the statement was made and that the statement injured the plaintiff s reputation. Taylor v. Goldsmith, 870 P. 2d 1264, 1265 (Colo. App. 1994). Uncertainty as to the full extent of the damage does not delay the accrual of a cause of action for defamation. Norris v. Baxter Healthcare Corp., 397 F. 3d 878, (10th Cir. 2005) (citing Taylor, 870 P.2d at 1266)

4 The Complaint makes it clear that Plaintiff was aware of the statements and that they injured his reputation at or around the time of the news report. Plaintiff was interviewed for the report prior to it being published and requested that it be taken down shortly after it was published. Therefore, the limitations period began to run in October Just as in Taylor and Norris, Plaintiff s failure to fully comprehend the extent of the injury does not delay the start of the limitations period. Plaintiff next argues that the continuing availability of the news report online represents a continuing harm that should toll the statute of limitations. The Court disagrees. Ruling that continued publication of a news story online tolled the statute of limitations would expose internet publishers to near limitless liability. Pippen v. NBCUniversal Media, LLC, 734 F.3d 610, 615 (7th Cir. 2013). That is presumably why every state court that has considered the issue applies the single-publication rule to online news stories. Id. (listing cases). Plaintiff cites no relevant case law in support of his argument that the single publication rule should not apply in this case. The Court finds that the single publication rule applies and that Plaintiff s defamation claim is barred by C.R.S (1)(a). Ancillary Claims Defendant claims that Plaintiff s claims for disparagement, outrageous conduct, and intentional infliction of prospective economic advantage must also be dismissed because they are premised on the barred defamation claim. C.R.S (1)(a) states that tort actions for libel and slander, regardless of the theory upon which suit is brought, must be commenced within one year after the cause of action accrues. C.R.S (1)(i) provides a two-year limitations period for outrageous conduct actions, interference with relationship actions, and actions that are not specifically identified by another statute. No other statute designates a limitations period for disparagement claims. As to Plaintiff s claims for outrageous conduct and intentional interference with prospective business advantage claims, the Court applies the two year statute of limitations and finds that they are not time barred. Scripps relies on Bush v. McMann, 55 P. 956, 957 (1899) to argue that the one-year limitation period applies to disparagement claims. In response, Defendant asks the Court to apply the two-year period applicable to actions that are not specifically designated a different limitations period. Although the Court finds Scripps argument persuasive, in the absence of explicit statutory language designating a one-year limitations period for disparagement claims, the Court declines to find that Plaintiff s disparagement claims are time barred. Accordingly, the Court now considers the merits of Scripps First Amendment arguments

5 (2) First Amendment Scripps argues that Plaintiff s remaining claims should be dismissed because they are all predicated on constitutionally protected speech. Specifically, Scripps argues that it is protected because the report was true and because the report fell within the fair report privilege. Because the Court finds that, even when viewed in the light most favorable to Plaintiff, the Complaint fails to sufficiently allege that the report was false, the Court does not consider the fair report privilege argument. State law tort standards must satisfy the First Amendment, see N.Y. Times v. Sullivan, 376 U.S. 254, 269 (1964), and whether allegedly defamatory statements are constitutionally privileged is a question of law, Lockett v. Garrett, 1 P.3d 206, 210 (Colo. App. 1999). The constitutional protections afforded a defendant in a defamation action apply to a defendant in a disparagement action. Teilhaber Mfg. Co. v. Unarco Materials Storage, 791 P.2d 1164, 1167 (Colo. App. 1989). Where an allegedly defamatory statement relates to a matter of public concern, the First Amendment requires the plaintiff to prove that the statement is false. Philadelphia Newspapers, Inc. v. Hepps, 475 US 767, (1986). It is appropriate to grant a motion to dismiss where the complaint and exhibits demonstrate that the statement was substantially true. See Barnett v. Denver Pub. Co., Inc., 36 P. 3d 145, 147 (Colo. App. 2001). Whether a matter is of public concern is a question of law. McIntyre v. Jones, 194 P. 3d 519, 525 (Colo. App. 2008). A matter is of public concern when the public has a legitimate interest in what is being published. Id. (citing Williams v. Continental Airlines, Inc., 943 P.2d 10, 17 (Colo. App. 1996)). In determining whether statements involve a matter of public concern, the Court looks to the content, form, motivation, and context of the statements. Id. Here, the statements at issue address a matter of public concern. The news report stated that patient records had been discovered and that that Lone Tree police were investigating the incident, so the content of the report indicates that the report related to matters of public concern. In addition, the report was published by a news organization, so the context and form of the report shows that this was a matter of public concern. Finally, the motivation for the report was to inform the public of the disclosure of private information belonging to members of the public, again showing that the report related to a matter of public concern. Accordingly, the Court concludes that the public had a legitimate interest in the subject of the news report and that the report addressed a matter of public concern. Because the news report addressed a matter of public concern, Plaintiff must show that the news report was false. Because he cannot, the Complaint must be dismissed. Plaintiff argues that the news report was false because it stated, in essence, that the discarded patient records were records of [Plaintiff s] former patients, and that Lone Tree, Colorado, police were investigating [Plaintiff s] role in and responsibility for the disposition of these patient records

6 (Complaint 20). But, Plaintiff s interpretation of the news report is contradicted by the report itself attached to the complaint as Exhibit 2. The news report did not state that police were investigating Plaintiff; rather it stated that the police were investigating how the documents came to be dumped in public. Further, the report did not state that the records belonged to Plaintiff s patients; instead it reported that the records belonged to the dental practice, which Plaintiff had sold to Dr. Walker the month before. Plaintiff admits that the police investigated the dumping of the documents, (Complaint 19), that the records belonged to his former practice, (id 15-16), and that he had sold the practice to Dr. Walker the month before the incident, (id. 10). Accordingly, even when viewed in the light most favorable to Plaintiff, the Complaint fails to show that the news report was false. Plaintiff argues in his Response that even if each statement in the news report was technically true, the report was not constitutionally protected because the gist of it was false. This confuses the legal standard. Under Gomba v. McLaughlin, 504 P.2d 337, 339 (Colo. 1972), statements that are literally false are protected so long as the gist of the statement is true. The Court can find no authority to support Plaintiff s position that demonstrably true statements can lose their constitutional protection because they are arranged so that they convey an inaccurate message. Regardless, the Court finds that Scripps s news report conveys a substantially true account of the facts as they are alleged in the Complaint. In light of the above discussion, the Court FINDS that the news report was protected speech under the First Amendment. Because disparagement claims are entitled to the same constitutional protections as defamation claims, Plaintiff s disparagement claim must be dismissed on this basis. Teilhaber Mfg. Co, 791 P.2d at In addition, Plaintiff s remaining claims must also be dismissed because they are predicated on the publication of constitutionally protected statements. See N.Y. Times v. Sullivan, 376 U.S. 254, 269 (1964); Fry v. Lee, 2013 COA 100 reh g denied Jul 25, 2013 (listing cases dismissed claims predicated on defective defamation claims); Williams v. Cont'l Airlines, Inc., 943 P.2d 10, 16 (Colo. App. 1996)

7 CONCLUSION Plaintiff s defamation claim is time barred by C.R.S. 103(1)(a). Plaintiff s remaining claims against Scripps fail because Scripps statements are protected by the First Amendment. Accordingly, Scripps Motion to Dismiss First Amended Complaint Pursuant to C.R.C.P. Rule 12(b)(5) is GRANTED. ENTERED this 13th day of January, BY THE COURT: J. Eric Elliff District Court Judge - 7 -