could contact them." Id. It refers to plaintiff as the "director" and the "executive director" of the pageant. Id. No other pageant employee is mentioned. Plaintiff has submitted evidence that her associates considered the article to be about her. Pl.'s Opp'n Exs. L, M, N, O. Viewed in its entirety, a reasonable jury could find that the article was "intended to refer to [plaintiff] and would be so understood by persons reading it who knew [her]." Gazette, Inc. v. Harris, 325 S.E.2d at 738.
B. Defendants' Conduct
Defendants next argue that they cannot be held liable because UPI merely republished a facially reasonable story from a reputable, reliable newspaper and that, in so doing, UPI was not negligent as a matter of law. Defs.' Mot. at 25. Although this assertion comports with the accepted common law standard of care for news gathering agencies that collect and disseminate information from other news sources, see, e.g., Nelson v. Associated Press, 667 F. Supp. 1468, 1476-77 (S.D. Fla. 1987), the Virginia state courts have not directly addressed this question and therefore have neither accepted nor rejected this rationale.
Two federal district courts, purporting to apply Virginia law, however, have spoken to the question and both have adopted the rule that a wire service agency is not negligent as a matter of law when it republishes on its wire a local news article that does not "suggest a factual error or the need for further investigation." Holden v. Clary, 1992 U.S. Dist. LEXIS 19951, 1992 WL 373145, at *4; see Winn v. Associated Press, 903 F. Supp. 575, 580 (S.D.N.Y. 1995) ("Winn I "). In Holden v. Clary, the United States District Court for the Eastern District of Virginia concluded that an agency that picked up, revised and disseminated an article stating that a plaintiff was a "former attorney," when in fact she was a member in good standing of the Bar, did not act negligently by failing to check whether she had actually been disbarred. 1992 U.S. Dist. LEXIS 19951, 1992 WL 373145, at *4. Observing that "the [Associated Press] is charged with the prompt and efficient transmission of news . . . [and] cannot be expected to research the minute details of every story that passes over their wires, unless they have reason to [do so]," the court held that the article's original reporter and periodical, not the AP, bore the primary responsibility for proper research. Id.
In a decision involving the plaintiff in this case, the United States District Court for the Southern District of New York, applying Virginia law, found that the Associated Press was not negligent as a matter of law for republishing the very same pageant story that UPI republished here. Winn I, 903 F. Supp. at 580. Noting the solid reputation of the Virginian-Pilot and crediting the Associated Press editor's conclusion that the original article was "thoroughly researched, fairly presented, neither improbable nor implausible and suggested no factual errors warranting further investigation," the court held that there was no basis on which a jury could find that the wire service agency had been negligent in publishing the story. Id. "The wire service defense is available where, as here, a news organization reproduces an apparently accurate article by a reputable publisher, without actual knowledge of its falsity." Id. at 579.
Several other courts have adopted this same rationale. The North Carolina Court of Appeals ruled that a newspaper editor who published an article incorporating potentially defamatory information from "reputable wire services and daily newspapers" was not negligent as a matter of law because "there was nothing inconsistent or improbable in the articles upon which [the defendant] relied which should have prompted her to investigate the reliability of the stories." McKinney v. Avery Journal, Inc., 99 N.C. App. 529, 393 S.E.2d 295, 297 (N.C. Ct. App. 1990). A federal court in Florida held that Newsweek magazine was not negligent as a matter of law when it republished arguably defamatory information that it had obtained from reports in The Washington Post, The New York Daily News, The Miami Herald and The Palm Beach Daily News. Nelson v. Associated Press, 667 F. Supp. at 1475-77. Recognizing the cost and logistical burden of verifying the authenticity of every news item and the public's need for prompt dissemination of the news, the court held that "absent a showing that [it is] negligent or careless in condensing or summarizing other sources of news information," a periodical that relies on articles from other reliable publications is not negligent as a matter of law when it does not verify those articles with their original sources. Id. at 1477; cf. Mehau v. Gannett Pacific Corp., 66 Haw. 133, 658 P.2d 312, 321-22 (Haw. 1983) (wire service not entitled to summary judgment on question of malice where source of article was "a new publication apparently given to sensationalizing the news" and where the service "strung together" quotes so as to implicate plaintiff in criminal activity "by innuendo and inference").
As in Winn I, the defendants here have presented evidence that UPI did not write the original pageant article but picked it up from the Virginian-Pilot. Click Dep. Tr. at 32-33, 36; Reply Ex. 62. The head of UPI's Richmond office testified that UPI contributed no original reporting to the story, but merely "condensed it down, picked out the . . . highlights, [and] changed the lead a little bit" prior to distributing it over the news wire. Click Dep. Tr. at 38-45; compare UPI Article with Pilot Article. Plaintiff vehemently contests this assertion, but she has submitted no probative evidence to support her argument. Pl.'s Opp'n at 13, 17. The two articles that plaintiff does submit on this point do not even refer to her organization. See Pl.'s Ex. T (article relating criticism of the Miss Black America Pageant); Pl.'s Ex. Y (two articles concerning Mike Tyson's trial for allegedly raping a contestant at the Miss Black America Pageant); see also Reply at 21 n.26.
At the time she picked up the Virginian-Pilot story, UPI's Virginia state editor had no reason to believe that the story was not reliable. Click Dep. Tr. at 44, 46-52. Competing wire service employees who handled the same story attest that they also considered it to be "thoroughly researched and fairly presented" and saw no indication that further investigation might be necessary. Defs.' Mot. Ex. 17 ("Taylor Aff.") P 9; Defs.' Mot. Ex. 18 ("Petkofsky Aff.") P 5. Plaintiff submits no probative evidence contesting this point. The UPI editor considered the Virginian-Pilot to be a reputable, reliable news source that employed reporters who knew what they were doing . . . [and] editors who were obviously paying attention to what went into the body of a newspaper affecting their community." Click Dep. Tr. at 40-42. In addition, the UPI editors had republished Virginian-Pilot articles on numerous prior occasions without complaint. Id. Employees of competing wire services agree that the newspaper is well-established, has "an excellent reputation for accuracy" and employs "careful and responsible journalists." Taylor Aff. P 6; Petkofsky Aff. P 4.
On a motion for summary judgment, the non-moving party may not rest upon mere allegations or denials, but must "set forth specific facts showing that there is a genuine issue for trial." Rule 56(e), FED. R. CIV. P.; see Anderson v. Liberty Lobby, Inc., 477 U.S. at 248-50. Because plaintiff has presented no evidence to suggest that defendants did not act with due care by picking up and republishing this story, she has failed to raise a genuine issue of material fact as to defendants' conduct. Defendants therefore are entitled to judgment as a matter of law.
III. FRAUDULENT MISREPRESENTATION
Plaintiff also alleges that by publishing its article UPI committed intentional misrepresentation or fraud. Compl. P 13. This claim misconstrues the tort. The elements of fraudulent misrepresentation under Virginia law are "(1) a false representation, (2) of a material fact, (3) made intentionally and knowingly, (4) with intent to mislead, (5) reliance by the party misled, and (6) resulting damage to the party misled." Spence v. Griffin, 236 Va. 21, 372 S.E.2d 595, 598 (Va. 1988) (emphasis added). Plaintiff asserts that the alleged defamatory statements were relied upon by the general public not to the public's detriment, but to the detriment of plaintiff. Compl. P 13. Even assuming the dubious proposition that plaintiff has standing to assert a claim for an injury inflicted on the general public, she has offered no evidence that such damage has occurred. Plaintiff therefore has failed to state a claim.
IV. TORTIOUS INTERFERENCE
Plaintiff also claims that defendants tortiously interfered with her or MBVP's contracts with "past [pageant] winners, sponsors, and reigning winners" by publishing the pageant article. Compl. P 18. To establish a prima facie case of tortious interference with contractual rights under Virginia law, a plaintiff must show: "(1) the existence of a valid contractual relationship or business expectancy; (2) knowledge of the relationship or expectancy on the part of the interferer; (3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy has been disrupted." Chaves v. Johnson, 230 Va. 112, 335 S.E.2d 97, 102 (Va. 1985).
Plaintiff provides no evidence of contracts or expectancies that defendants have interfered with, much less of knowledge of such contracts on the part of defendants or of the breach of such contracts. Because she again may not rest upon mere allegations to survive a motion for summary judgment, plaintiff has failed to establish a genuine issue for trial and defendants are entitled to judgment as a matter of law.
The Court has considered the motion, the opposition, supporting and opposing affidavits and other submissions by the parties and finds that there is no genuine issue of material fact as to plaintiff's claims for defamation and for tortious interference with contractual rights and that plaintiff's allegation of fraud fails to state a claim upon which relief can be granted. Defendants therefore are entitled to judgment as a matter of law. An Order consistent with this Opinion will be issued this same day.
PAUL L. FRIEDMAN
United States District Judge
For the reasons stated in the Opinion issued this same day, it is hereby
ORDERED that defendants' motion for summary judgment is GRANTED. Judgment is entered for defendants on all counts of plaintiff's complaint; and it is
FURTHER ORDERED that this action be removed from the docket of the Court.
PAUL L. FRIEDMAN
United States District Judge