GEORGE ELIAS, IV, STEPHEN HADFORD, ROSS FOWLER, Plaintiffs-Appellants,
v.
ROLLING STONE LLC, SABRINA RUBIN ERDELY, WENNER MEDIA LLC, Defendants-Appellees.
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.
...