Monge v. Univ. of Pa.

674 F.Supp.3d 195

Janet MONGE, Plaintiff v. UNIVERSITY OF PENNSYLVANIA et al., Defendants

CIVIL ACTION No. 22-2942

United States District Court, E.D. Pennsylvania

Signed May 26, 2023

Alan B. Epstein, Adam Filbert, Spector Gadon Rosen Vinci P.C., Philadelphia, PA, for Plaintiff.

Ali M. Kliment, Benjamin K. Jacobs, Alexis Caris, Michael L. Banks, Morgan, Lewis & Bockius LLP, Philadelphia, PA, for Defendants University of Pennsylvania, Amy Gutmann, Wendell Pritchett, Kathleen Morrison, Deborah Thomas, Christopher Woods.

Michael R. Galey, Todd Alan Ewan, Fisher Phillips LLP, Philadelphia, PA, for Defendants Paul Mitchell, Kinjal Dave, Jake Nussbaum.

Daniel W. Meehan, Gordon & Rees LLP, Florham Park, NJ, Ronald A. Giller, Alexander Nemiroff, Gordon & Rees LLP, Philadelphia, PA, for Defendants Billy Penn, Maya Kassutto.

Eli M. Segal, Peter H. LeVan, Jr., LeVan Stapleton Segal Cochran LLC, Philadelphia, PA, for Defendants PBC The Philadelphia Inquirer, Abdul Aliy Muhammad, Jenice Armstrong.

Alexandra M. Settlemayer, Pro Hac Vice, Amanda B. Levine, Pro Hac Vice, Jeremy A. Chase, Pro Hac Vice, Davis Wright Tremaine LLP, New York, NY, Andrew A. Chirls, Fineman Krekstein & Harris PC, Philadelphia, PA, for Defendants The New Yorker, Heather Ann Thompson, The Guardian Media Group, Ed Pilkington, Daily Mail And General Trust, PLC, Adam Schrader, Slate, Elain

Ayers, NYP Holdings, Inc., Jackson O'Bryan, Teen Vogue, Ezra Lerner, New York Times, Co., Michael Levenson.

Andrew A. Chirls, Fineman Krekstein & Harris PC, Philadelphia, PA, for Defendants ESPN, Inc., Nicole Froio, Linn Washington.

Kathleen D. Wilkinson, Wilson, Elser, Moskowitz, Edelman & Dicker LLP, Philadelphia, PA, for Defendant The American Anthropological Association.

Joseph L. Turchi, Michele L. Weckerly, Jared A. Trachtenberg, Salmon, Ricchezza, Singer & Turchi LLP, Philadelphia, PA, for Defendant The Society of Black Archaeologists.

Thomas Paschos, Thomas Paschos & Associates, PC, Philadelphia, PA, for Defendant Hyperallergic Media.

Julian Newton Weiss, Michael E. Baughman, Troutman Pepper Hamilton Sanders LLP, Philadelphia, PA, for Defendant Nora McGreevy.

Michael K. Twersky, Alberto Longo, Fox Rothschild LLP Litigation Department, Blue Bell, PA, for Defendants Al Dia News, Brittany Valentine.

MEMORANDUM

Pratter, United States District Judge

INTRODUCTION

Billy Penn and Maya Kassutto move to dismiss the claims brought against them by Dr. Monge. For the reasons that follow, the Court grants the motion to dismiss with prejudice as to the defamation claim, and without prejudice to Dr. Monge to endeavor to replead as to the defamation by implication, false light, and civil aiding and abetting claims.

BACKGROUND¹

On April 21, 2021, Billy Penn published an article by Maya Kassutto entitled "Remains of Children Killed in MOVE Bombing Sat in a Box at Penn Museum for Decades." Am. Compl. Ex. A, at ECF 63. Billy Penn is a membership 501(c)(3) media organization associated with, and a program of, WHYY Philadelphia, which provides Philadelphia local news. This Billy Penn article was the first of the articles published by the named defendants in this litigation, and Dr. Monge alleges that the defamatory content of the Billy Penn article was republished and embellished in the subsequent publications and statements of the other named defendants.

With regards to the content of the Billy Penn article, Dr. Monge alleges that the "article falsely asserted that the unidentified [bone] fragments were the remains of Katricia Africa and implied serious scientific misconduct by Dr. Monge in the retention and handling of the [bone] fragments." Am. Compl. ¶ 152. Dr. Monge further alleges that the article defamed her by calling her a "chipper science teacher" and "alleging that she improperly used the remains of a black girl as 'props.' " Id. Finally, Dr. Monge alleges that the article defamed her "by insinuating a racist motive for the retention and investigation undertaken" by stating, in part, that "[t]he absence of ethics, void of communication, and abdication of responsibility regarding these remains mirror the circumstances that led to the 1985 disaster." Id. ¶ 153.

Dr. Monge alleges that defendant Paul Mitchell, an anthropology doctoral student at the University of Pennsylvania, instigated the publication of the Billy Penn article after allegedly raising concerns about Dr. Monge to the Penn Museum and not seeing the purportedly intended disciplinary results for Dr. Monge. Dr. Monge alleges that Mr. Mitchell contacted Ms. Kassutto, Mr. Mitchell's then-girlfriend, regarding the remains and Dr. Monge's alleged mishandling of the remains. Ms. Kassutto, who was writing articles for Billy Penn at the time, then published the article at issue "with the aid of Defendant Paul Mitchell." Am. Compl. ¶¶ 150, 157.

Billy Penn and Ms. Kassutto now move to dismiss the claims brought against them in Dr. Monge's Amended Complaint.

LEGAL STANDARD

An action may be dismissed if it "fail[s] to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). At the motion to dismiss stage, the Court must accept factual allegations as true, but it is not "compelled to accept unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation." Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (internal citations and quotation marks omitted). "To survive a motion to dismiss, a complaint must contain sufficient factual matter . . . to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). A claim is facially plausible "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.

DISCUSSION

I. Defamation

To state a claim for defamation, the plaintiff must plead: (1) the defamatory character of the communication; (2) its publication by the defendant; (3) its application to the plaintiff; (4) the understanding by the recipient of its defamatory meaning; (5) the understanding by the recipient of it as intended to be applied to the plaintiff; (6) special harm resulting to the plaintiff from its publication; and (7) abuse of a conditionally privileged occasion, 42 Pa. C.S. § 8343(a). Where the plaintiff meets her burden of proof, the burden shifts to the defendants to prove the truth of the defamatory statement, the privileged nature of the communication, or that the subject matter of the defamatory statement is a matter of public concern. 42 Pa. C.S. § 8343(b).

A. Capable of Defamatory Meaning

The first step a court must take in the defamation analysis is to determine whether the statement at issue is capable of defamatory meaning. Ruder v. Pequea Valley Sch. Dist., 790 F. Supp. 2d 377, 399 (E.D. Pa. 2011). Courts can dismiss defamation claims at the motion to dismiss stage if the statements are not capable of defamatory meaning. See e.g., Gibney v. Fitzgibbon, 547 F. App'x 111, 114 (3d Cir. 2013) (affirming dismissal of defamation claim where "statement was not capable of a defamatory meaning as a matter of law"); I.M. Wilson, Inc. v. Otvetstvennostyou "Grichko", 500 F. Supp. 3d 380, 422-24 (E.D. Pa. 2020) (dismissing defamation claim at the motion to dismiss stage because "the Court [did] not find that the statements [were] capable of defamatory meaning"); Tucker v. Phila. Daily News, 577 Pa. 598, 848 A.2d 113, 124 (2004) ("If the court determines that the challenged publication is not capable of a defamatory meaning, there is no basis for the matter to proceed to trial.").

To determine whether a statement is capable of defamatory meaning, the Court considers "(1) whether the communication was reasonably capable of conveying the particular meaning ascribed to it by the plaintiff; and (2) whether that meaning is defamatory in character." Pace v. Baker-White, 432 F. Supp. 3d 495, 510 (E.D. Pa. 2020). When the statement is not " 'reasonably susceptible of a defamatory meaning,' the plaintiff has failed to state a claim." Id. (citing Beverly Enters., Inc. v. Trump, 182 F.3d 183, 191 (3d. Cir. 1999)). A statement is defamatory if it "tends so to harm the reputation of another as to lower him [or her] in the estimation of the community or to deter third persons from association or dealing with him [or her]," U.S. Healthcare, Inc. v. Blue Cross of Greater Phila., 898 F.2d 914, 923 (3d Cir. 1990). "[T]he statement must do more than merely embarrass or annoy the plaintiff; it must provoke 'the kind of harm which has grievously fractured [one's] standing in the community of respectable society.' " Graboff v. Colleran Firm, 744 F.3d 128, 136 (3d Cir. 2014) (quoting Tucker, 848 A.2d at 124).

1. Falsity Is a Required Element That the Plaintiff Must Prove Against a Media Defendant When the Matter Is of Public Concern

In Pennsylvania, truth is an affirmative defense to defamation. Tucker v. Fischbein, 237 F.3d 275, 287 (3d Cir. 2001); 42 Pa. Cons. Stat. § 8343(b)(1). Although the defendant generally bears the burden of proof when asserting truth as a defense, the plaintiff bears the burden of proving falsity where the defendant is a member of the media and the statement involves a matter of public concern. Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767, 776-77, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986); see also Kuwait & Gulf Link Transp. Co. v. Doe, 216 A.3d 1074, 1087 (Pa. Super. Ct. 2019) ("If the statement in question bears on a matter of public concern, or the defendant is a member of the media, First Amendment concerns compel the plaintiff to prove, as an element, that the alleged defamatory statement is in fact false."). "Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community or when it is a subject of legitimate news interest; that is, a subject of general interest and of...