Green v. Cosby

138 F.Supp.3d 114

Tamara Green, Therese Serignese, and Linda Traitz, Plaintiffs,

v.William H. Cosby, Jr., Defendant.

Civil Action No. 14–30211–MGM

United States District Court, D. Massachusetts.

Signed October 9, 2015

Joseph Cammarata, Matthew W. Tievsky, Cchaikin, Sherman, Cammarata & Siegel, P.C., Washington, DC, Andrew M. Abraham, Abraham & Associates, P.C., Boston, MA, for Plaintiffs.

Christopher Tayback, Marshall M. Searcy, III, Quinn Emanuel Urquhart Oliver & Hedges, LLP, Los Angeles, CA, Francis D. Dibble, Jr., Elizabeth S. Zuckerman, Jeffrey E. Poindexter, Bulkley, Richardson & Gelinas, John J. Egan, Egan, Flanagan & Cohen, PC, Springfield, MA, Robert P. Lobue, Patterson Belknap Webb & Tyler, LLP, New York, NY, for Defendant.

MEMORANDUM AND ORDER REGARDING DEFENDANT'S MOTIONS TO DISMISS PLAINTIFFS' COMPLAINT

MASTROIANNI, United States District Judge

I. INTRODUCTION

On December 10, 2014, Tamara Green filed a complaint alleging that William H. Cosby, Jr. ("Defendant") publicly defamed her in statements made by individuals operating at his direction and/or within the scope of their employment. (Dkt. No. 1, Compl.) The complaint was subsequently amended to include similar claims by two additional plaintiffs, Therese Serignese and Linda Traitz (collectively, the three are referred to as "Plaintiffs"). (Dkt. No. 13, Am. Compl.) Defendant filed motions to dismiss Plaintiffs' amended complaint in its entirety (Dkt. Nos. 21, 22, 23), which Plaintiffs opposed. (Dkt. No. 31.) Plaintiffs then sought leave to file a second amended complaint and, on April 16, 2015, the court granted Plaintiffs' request. Green v. Cosby , 99 F.Supp.3d 223, 225–26, 2015 WL 1736487, at *2–3 (D.Mass.2015). Plaintiffs' second amended complaint ("SAC") supplemented factual allegations with respect to an allegedly defamatory statement directed at Green.¹ (Dkt. No. 48, SAC.) The court held a hearing on the matter and considered the written filings.

II. JURISDICTION

The SAC contains three defamation counts brought pursuant to state law. Defamation is not actionable under federal law. Federal courts have jurisdiction over suits brought pursuant to state law where there is complete diversity of citizenship between the adversaries and the amount in controversy exceeds a threshold amount of $75,000. 28 U.S.C. § 1332 ; Arbaugh v. Y&H Corp. , 546 U.S. 500, 513, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). Based on the content of the complaint, which Defendant has not disputed, the court finds Defendant is a citizen of Massachusetts and Plaintiffs are citizens of either California or Florida. (SAC ¶¶ 2, 4-6.) Plaintiffs each assert they are entitled to damages in excess of the statutory threshold amount. In the absence of any challenge from Defendant, the court finds it has jurisdiction in this case pursuant to 28 U.S.C. § 1332.

III. MOTION TO DISMISS STANDARD

When considering a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court must accept all well-pleaded facts as true and draw all reasonable inferences in favor of the plaintiff. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ; see also San Gerónimo Caribe Project, Inc. v. Acevedo – Vilá , 687 F.3d 465, 471 (1st Cir.2012). The burden is on the moving party to demonstrate that even when viewed in the light most favorable to the plaintiff, the complaint lacks "sufficient factual matter" to state an actionable claim for relief that is " ‘plausible on its face.’ " Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. When evaluating the sufficiency of the factual allegations contained in the complaint, the court must be careful both to credit the factual assertions made by the plaintiff and to disregard "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Id."Determining whether a complaint states a plausible claim for relief" is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679, 129 S.Ct. 1937. A complaint must survive a motion to dismiss if the facts alleged are sufficient as to each element to "raise a right to relief above the speculative level."

Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ; see also Lister v. Bank of Am., N.A. , 790 F.3d 20, 23 (1st Cir.2015) ("Dismissal for failure to state a claim is appropriate if the complaint does not set forth factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory." (internal quotation marks omitted)).

IV. FACTS AS ALLEGED BY PLAINTIFFS ²

During the 1970s, Defendant, "an internationally known actor and comedian," met each Plaintiff and subsequently sexually assaulted her. (SAC ¶¶ 3, 7, 18-21, 39, 47-48, 57, 63.) With respect to Plaintiff Green, "[o]n a certain date in the early 1970s," Defendant offered her two pills, telling her they were over-the-counter cold medicine. (Id. ¶¶ 10, 12.) She took the pills and became weak and dizzy. (Id. ¶¶ 13-14.) Defendant then drove Plaintiff Green to her apartment, where he subjected her to sexual contact against her will and despite her repeated demands to stop. (Id. ¶¶ 17-21.) Plaintiff Green was unable to defend herself during the sexual assault because she remained weak and vulnerable. (Id. ¶ 22.)

In 1970, Plaintiff Traitz met Defendant while working as a waitress. (Id. ¶ 57.) On one occasion she accepted a ride home from Defendant, but he instead drove her to a beach. (Id. ¶¶ 58-59.) He parked his car and then opened a briefcase containing pills and urged Plaintiff Traitz to take some pills "to relax." (Id. ¶ 60.) When Plaintiff Traitz declined the pills, Defendant groped her, pushed her down, and attempted to lie on top of her, despite her resistance. (Id. ¶¶ 62-63.)

Plaintiff Serignese met Defendant in Las Vegas in 1976 and attended his show. (Id. ¶¶ 39, 42-43.) Afterwards, she was invited to a room backstage where Defendant gave her two pills and instructed her to take them. (Id. ¶¶ 43-44.) Plaintiff Serignese complied and the pills caused her to be in an altered state of consciousness. (Id. ¶¶ 44-45.) While she was in this altered state, Defendant subjected her to sexual contact without her consent. (Id. ¶¶ 47-48.) Like Plaintiff Green, Plaintiff Serignese was physically unable to defend herself. (Id. ¶ 49.)

Many years later, in February of 2005, the Philadelphia Daily News published an interview with Plaintiff Green in which she publicly disclosed the sexual assault that had occurred in the 1970s. (Id. ¶ 24.) Plaintiff Green also disclosed the allegations during appearances on television shows around the same time. (Id. ) Nine years later, on or about February 7, 2014, Newsweek published an interview with Plaintiff Green in which she repeated her description of being sexually assaulted by Defendant in the 1970s. (Id. ¶ 27.)

On November 18, 2014, Plaintiff Traitz made an entry on her personal Facebook page publicly disclosing that Defendant had sexually assaulted her. (Id. ¶ 64.) The following day, Plaintiff Serignese publicly disclosed that she had been sexually assaulted by Defendant.³ (Id. ¶ 50.) Several days later, on November 22, 2014, details of Plaintiff Green's sexual assault were published by the Washington Post . (Id. ¶ 31.)

Plaintiffs allege that Defendant, acting through his agents,⁴ issued statements to the media in response to the public disclosures made by Plaintiffs. (Id. ¶¶ 25-26, 28-29, 30, 32-35, 37-38, 51-53, 55-56, 65-68, 70-71.) Defendant knew each statement was false at the time it was made. (Id. ¶¶ 36, 54, 69, 79, 90, 101.) Despite knowing the statements were false, Defendant directed the statements be made. (Id. ¶¶ 37, 55, 70.) Each of the statements was widely read by many people, including Plaintiffs' families, friends, and neighbors, and Plaintiffs suffered damages, including to their reputations, as a result of the publication of the statements. (Id. ¶¶ 38, 56, 71, 80-82, 91-93, 102-104.) The statements were made as follows:

A. Newsweek Statement—February 7, 2014

Prior to the publication of Newsweek' s interview with Plaintiff Green in February of 2014, Defendant, acting through a publicist, believed by Plaintiffs to be David Brokaw ("Brokaw"), made a statement to Newsweek . (Id. ¶¶ 28-30.) The publicist provided the statement to Newsweek while acting as Defendant's authorized agent, employee, or authorized representative and he knew or should have known the statement was false when it was made. (Id. ¶¶ 29, 77-78) The statement was appended to the end of the story and read, in its entirety:

This is a 10-year-old, discredited accusation that proved to be nothing at the time, and is still nothing.

(Dkt. No. 25, Decl. re: Mem. Supp. Mot. to Dismiss ("Decl. re: Mot. to Dismiss"), Ex. A at 3, hereinafter "Newsweek Statement.")

B. November 20, 2014 Statement

Two days after Plaintiff Traitz wrote on her personal Facebook page about Defendant sexually assaulting her in the 1970s, Defendant, acting through Martin D. Singer ("Singer"), released a responsive statement to numerous media outlets. (SAC ¶ 65.) Singer gave the statement while acting as Defendant's authorized agent, employee, or authorized representative and he knew or should have known the statement was false when it was made. (Id. ¶¶ 53, 99-100.) The statement read, in its entirety, as follows:

Ms. Traitz is the latest example of people coming out of the woodwork with fabricated or unsubstantiated stories about my client.

Linda Joy Traitz is making ridiculous claims and suddenly seems to have a lot to say about a fleeting incident she says happened with my client more than 40 years ago, but she

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