Elias v. Rolling Stone LLC

          ARGUED: April 27, 2017

         Appeal from the United States District Court for the Southern District of New York. No. 15-cv-5953 - P. Kevin Castel, Judge.

         Plaintiffs-Appellants George Elias, IV, Stephen Hadford, and Ross Fowler appeal from a decision of the United States District Court for the Southern District of New York (Castel, J.) dismissing their defamation claims against Defendants-Appellees Rolling Stone, LLC, Sabrina Rubin Erdely, and Wenner Media LLC. Plaintiffs' defamation action arises from a now-retracted Rolling Stone magazine article written by Erdely titled, "A Rape on Campus: A Brutal Assault and Struggle for Justice at UVA" (the "Article") as well as a subsequent online podcast appearance by Erdely discussing the Article (the "Podcast"). The District Court granted Defendants' motion to dismiss for failure to state a claim in its entirety. The District Court held that Plaintiffs had not sufficiently pled that Defendants' purportedly defamatory statements in the Article and the Podcast were "of and concerning" them. Additionally, the District Court held that Erdely's Podcast statements were non-actionable opinion. We hold that Plaintiffs Elias and Fowler have plausibly alleged that the purportedly defamatory statements in the Article only were "of and concerning" them individually. We also hold that Plaintiffs have plausibly alleged that the Article was "of and concerning" them under a theory of small group defamation. However, we hold that the District Court correctly determined that Erdely's comments in the Podcast were non-actionable opinion, and that Plaintiff Hadford did not plausibly allege that the statements in the Article were "of and concerning" him as an individual apart from his membership in Phi Kappa Psi. Accordingly, we AFFIRM in part insofar as the District Court dismissed Plaintiffs' claims regarding the Podcast and Plaintiff Hadford's individual claims, and REVERSE in part insofar as the District Court dismissed Plaintiffs Elias's and Fowler's individual claims and all Plaintiffs' claims under a theory of small group defamation, and REMAND the cause to the District Court for further proceedings consistent with this opinion.

          Alan Lee Frank, Alan L. Frank Law Associates, P.C., Jenkintown, PA, for Plaintiffs-Appellants.

          Elizabeth A. McNamara (Samuel M. Bayard, Abigail B. Everdell, Davis Wright Tremaine LLP, New York, NY; Alison Schary, Davis Wright Tremaine LLP, Washington, DC, on the brief), Davis Wright Tremaine LLP, New York, NY, for Defendants-Appellees.

          Before: Cabranes and Lohier, Circuit Judges, and Forrest, District Judge.^[1]

          FORREST, DISTRICT JUDGE

         George Elias, IV, Stephen Hadford, and Ross Fowler (collectively, "Plaintiffs") appeal from a June 28, 2016 decision of the United States District Court for the Southern District of New York (Castel, J.) dismissing their defamation claims against Rolling Stone, LLC ("Rolling Stone"), Sabrina Rubin Erdely, and Wenner Media LLC ("Wenner Media") (collectively, "Defendants"). Plaintiffs' defamation action arises from a now-retracted Rolling Stone magazine article written by Erdely titled, "A Rape on Campus: A Brutal Assault and Struggle for Justice at UVA" (the "Article") as well as a subsequent online podcast appearance by Erdely discussing the Article (the "Podcast"). The Article, first published in the November 19, 2014 online edition of the magazine, presented a detailed account of an alleged violent gang rape of a woman named "Jackie" by seven male participants and two male onlookers (including a man named "Drew") in a bedroom of the Phi Kappa Psi fraternity house at the University of Virginia ("UVA").

         Following widespread national attention to the Article's allegations, it was discovered that "Jackie, " the Article's main subject as well as Erdely's principal source, had fabricated the story. In the wake of this discovery, Rolling Stone retracted the Article and issued an apology on April 5, 2015.

         On July 29, 2015, Plaintiffs sued Rolling Stone, Erdely, and Wenner Media for defamation. Plaintiffs, who were undergraduate students and members of the Phi Kappa Psi fraternity at UVA when Jackie's rape purportedly occurred, alleged that the Article and Podcast defamed them by identifying them individually as participants in Jackie's alleged rape and by identifying them collectively as members of a group of Phi Kappa Psi fraternity brothers at the time the rape allegedly occurred.

         Defendants moved to dismiss Plaintiffs' complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). By Memorandum and Order dated June 28, 2016, the District Court granted Defendants' motion in its entirety. The District Court held that Plaintiffs had not sufficiently pled that Defendants' statements were "of and concerning" them, as is necessary to sustain a claim for defamation. The District Court found that, as a matter of law, the statements were insufficient to be "of and concerning" each Plaintiff individually and were also insufficient to support small group defamation. Additionally, the District Court held that Erdely's Podcast statements were not factual assertions, but non-actionable opinion.

         On appeal, we conclude that the District Court properly dismissed Plaintiffs' defamation claim arising from the Podcast. We also find that the District Court properly dismissed Plaintiffs' claims relating to Hadford individually. With regard to Elias and Fowler, however, we conclude that the complaint plausibly alleged that the statements in the Article were "of and concerning" them individually. We further conclude that the complaint plausibly alleged that all Plaintiffs were defamed as members of Phi Kappa Psi under a theory of small group defamation. Accordingly, we AFFIRM in part insofar as the District Court dismissed Plaintiffs' claims regarding the Podcast and Plaintiff Hadford's individual claims, and REVERSE in part insofar as the District Court dismissed Plaintiffs Elias's and Fowler's individual claims and all Plaintiffs' claims under a theory of small group defamation, and REMAND the cause to the District Court for further proceedings consistent with this opinion.

         BACKGROUND

         A. Factual Background

         1. The Plaintiffs

         The following facts are taken from the complaint and joint appendix and are presumed true for the purpose of resolving Defendants' motion to dismiss. Plaintiffs are George Elias IV, Ross Fowler, and Stephen Hadford, three men in their mid-twenties who graduated from UVA in 2013. All were active members of the Phi Kappa Psi fraternity in the fall of 2012, the relevant timeframe of Jackie's alleged rape described in the Article. As discussed in further detail below, Plaintiffs' relevant individual distinguishing characteristics are as follows: Elias lived in the first bedroom at the top of the stairs on the second floor of Phi Kappa Psi's on-campus fraternity house; Fowler was a previous rush chair for the fraternity and an avid swimmer at the university aquatic facility; and Hadford frequently rode his bike on campus in the year following his graduation. Plaintiffs' membership in the fraternity and the UVA class of 2013 was shown and listed on Plaintiffs' Facebook accounts, Phi Kappa Psi's website, and is common knowledge amongst current and former UVA students. In the fall of 2012, there were fifty-three Phi Kappa Psi members, of whom thirty-one were members of either the class of 2013 or 2014.

         Phi Kappa Psi's UVA chapter has an on-campus house in which the fraternity hosts events and where certain fraternity members live. During both the 2012 and 2013 school years, Plaintiff Elias lived in the Phi Kappa Psi house in the first bedroom at the top of the first flight of stairs; according to the complaint, this was known to people who knew Elias because, among other reasons, it was unusual for Phi Kappa Psi members to live in the on-campus house for more than one year. Elias's room was the only bedroom in the house on the second floor that was not located behind an electronic keypad lock; it was therefore the only bedroom on the second floor that was directly accessible from the house's main staircase. According to the complaint, Elias's room was also one of only three rooms on the second floor of the house large enough to hold ten people.

         Like many fraternities, Phi Kappa Psi requires prospective members to apply for membership through a pledge process run by a "rush chair." Fowler served as rush chair for the 2010-2011 academic year, making him responsible for the fraternity's recruitment and initiation processes, and he was also active in the rush process during the 2011-2012 academic year. Fowler was also an avid swimmer at UVA; he regularly swam at the university's aquatic center.

         Plaintiff Hadford was also a member of Phi Kappa Psi who graduated in 2013. According to Plaintiffs, Hadford wore Phi Kappa Psi shirts almost daily prior to the release of the Article. Hadford lived on campus for fifteen months after graduating, and he frequently rode his bike across the UVA campus on his way to work or social visits.

         2. The Article and Podcast

         On November 19, 2014, Rolling Stone published an online article authored by Erdely titled, "A Rape on Campus: A Brutal Assault and Struggle for Justice at UVA." According to the complaint, the Article generated worldwide headlines, and its online edition received more than 2.7 million views. The main subject of the Article was "Jackie, " a woman interviewed by Erdely and who was Erdely's primary source for the piece. The Article recounts a brutal gang rape that Jackie claimed she suffered over the course of three hours in a bedroom at the Phi Kappa Psi fraternity house at UVA in the fall of 2012.

         The Article opened with Jackie, then a freshman, at a party with "her date, [a] handsome Phi Kappa Psi brother" pseudonymously named "Drew, " a junior whom she "met while [they were] working lifeguard shifts together at the university pool." JA-100 to JA-101. According to the Article, Drew then invited Jackie to an upstairs bedroom, where she was subsequently thrown through a glass table and forcibly gang raped by seven men while Drew and a ninth man observed. The Article stated that "spectators swigged beers" and the attackers "called each other nicknames like Armpit and Blanket." JA-101. According to the Article, the attackers encouraged one participant to rape Jackie by uttering statements like "What, she's not hot enough for you?"; "Don't you want to be a brother?"; and "We all had to do it, so you do, too." Id. Jackie eventually passed out and awoke with her dress "spattered with blood, " at which point she exited the house while the party was still underway. Id. The Article explained that Drew later thanked Jackie for a "great time" at the party, and the other purported attackers likewise behaved toward Jackie as if nothing had ever happened. JA-103.

         At the end of her freshman year, the Article stated, Jackie first reported the rape to UVA Dean Nicole Eramo. JA-105. Dean Eramo is also reported as stating in late 2014 that "all the boys involved have graduated." JA-108. In addition to Jackie's rape, the Article described a rape that occurred at the Phi Kappa Psi house in 1984, ^[2] and asserted that after Jackie shared her account with friends, two other female UVA undergraduates contacted her and confided that they, too, had recently been Phi Kappa Psi gang-rape victims.^[3]

         On November 27, 2014, Erdely was interviewed as a guest on a podcast hosted by the online publication Slate. During the Podcast, Erdely stated:

I mean I would think that the first thing that they would do is at least tell her, you know, this needs to go to the police, these are dangerous people who are hurting people-who are hurting people-if they hurt you, and you know, and she heard them saying things during the rape like oh, you know, you have to, you know egging-keep egging each other on saying things like "Don't you wanna be a brother?" which seems to indicate that this is some kind of initiation ritual.

. . .

I would speculate that life inside of a frat house is a-probably-you know, you have this kind of communal life where everybody's sort of sharing information, it's a very-it's a life where, you know, people are living their lives very closely with one another. And, um, it seems impossible to imagine that people didn't know about this, that some people didn't know about this, maybe not everybody-it's a fairly large fraternity-there's something like 82 brothers in the fraternity now, currently in there-But it seems impossible to imagine that people did not know about it.

JA-26.

         3. ...