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Benz v. Washington Newspaper Publishing Co.

September 29, 2006

KATHLEEN A. BENZ, PLAINTIFF,
v.
THE WASHINGTON NEWSPAPER PUBLISHING COMPANY, LLC AND JOHN F. BISNEY, DEFENDANTS.



The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge

MEMORANDUM OPINION

Plaintiff Kathleen Benz commenced this action against defendants, The Washington Newspaper Publishing Company, LLC, publisher of the Washington Examiner ("the Examiner") and John F. Bisney ("Bisney"), alleging defamation, invasion of privacy, and intentional infliction of emotional distress, related to a gossip column published in the August 19, 2005 issue of the Examiner and for articles with similar content posted on various websites. Pending before the Court are defendants' respective motions to dismiss. Upon consideration of the motions, the responses and replies thereto, the Examiner's motion is DENIED IN PART and GRANTED IN PART, and Bisney's motion is DENIED IN PART and GRANTED IN PART.

I. FACTUAL BACKGROUND

Plaintiff is an assignment editor at the Washington, D.C. office of the Cable News Network ("CNN"). Am. Compl. ¶ 6. Defendant Bisney is a former CNN radio correspondent and a former colleague of plaintiff. Id. ¶ 11. In November 2002, plaintiff and Bisney developed a social friendship. Id. ¶ 16. During the period of their friendship, Bisney repeatedly expressed his desire to have a romantic and sexual relationship with plaintiff. Plaintiff, however, insisted on and maintained a platonic relationship with him. Id. ¶¶ 21-22, 56-57.

Their friendship ended in May 2005 when plaintiff learned that Bisney, without plaintiff's knowledge or permission, obtained access to her email account, read her emails, and established and maintained websites in the name of the plaintiff. Id ¶¶ 17, 69, 84-86. On those websites, Bisney posted personal and private information and photographs of plaintiff. Id. Bisney also wrote a "fake" article*fn1 about the plaintiff and sent it to her.*fn2 Id. ¶¶ 64-65. The article named various men whom plaintiff has allegedly dated. Id. ¶ 65. Of all the men mentioned, plaintiff has actually only dated Gary Williams, Paul Bosserman, Julian Epstein, and John Daggitt. Id. ¶ 66.

On June 1, 2005, plaintiff filed for a temporary restraining order against Bisney in the District of Columbia Superior Court. Id. ¶¶ 103-04. On July 11, 2005, plaintiff and Bisney entered into a "Binding Settlement Agreement and Release," which provided that "[t]he parties agree that they will not intentionally contact or communicate with each other." Id. ¶¶ 106, 107.

In July 2005, more articles about plaintiff, authored by Bisney, appeared on the internet.*fn3 Id. ¶¶ 109, 112, 117, 120. In August 2005, Bisney used plaintiff's name, her home and work telephone numbers, her home address, and email address to respond to personal advertisements seeking sexual relations on a website. Id. ¶ 142. As a result, plaintiff received numerous phone calls and email messages from individuals who believed that plaintiff wanted to engage in sexual relations with them. Id. ¶ 143.

On August 19, 2005, the Examiner published an article in the gossip column entitled "Controversial Love for CNN Producer"*fn4 by Karen Feld. Id. ¶ 162. Prior to publishing this article, Ms. Feld did not speak to the plaintiff. Id. ¶ 166. Once the article was published, plaintiff contacted Ms. Feld and told her that the article was substantially false. Id. ¶ 176. On September 30, 2006, the Examiner published an article by Karen Feld entitled "Correction."*fn5 Id. ¶ 180. On September 2, 2005, plaintiff filed this civil action against defendants the Examiner and Bisney alleging defamation, invasion of privacy and intentional infliction of emotional distress*fn6.

II. STANDARD OF REVIEW

The Court will not grant a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). See also Swierkiewicz v. Sorema, 534 U.S. 506, 514 (2002) (stating that a court may dismiss a complaint "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations"). Accordingly, at this stage of the proceedings, the Court accepts as true all of the complaint's factual allegations. See Does v. United States Dep't of Justice, 753 F.2d 1092, 1102 (D.C. Cir. 1985). Plaintiff is entitled to "the benefit of all inferences that can be derived from the facts alleged." Kowal, 16 F.3d at 1276.

III. DEFAMATION

Plaintiff contends that defendant, the Examiner, committed defamation when it published an article about the plaintiff in the August 19, 2005 gossip column. Plaintiff also alleges that defendant Bisney committed defamation when he posted "fake" articles he wrote about the plaintiff on various websites (hereinafter referred to as "the internet articles"). The August 19, 2005 article in the Examiner is similar in content to Bisney's internet articles.*fn7

According to the plaintiff, these articles are defamatory because they allege that plaintiff uses her position at CNN to meet and become romantically and sexually involved with "power players," i.e. wealthy, influential men; that she "hooked up" with porn king Mark Kulkis; and that hooking up with Kulkis was part of her pattern of using her position in the media to meet prominent men for personal and professional gain. These articles, which plaintiff alleges are false*fn8, have harmed her reputation professionally and in her community. See Howard Univ. v. Best, 484 A.2d. 958, 988 (D.C. 1984).

In response, the Examiner argues that there is nothing defamatory about a single woman being "linked romantically" with single men. Since none of the men mentioned in the column are married, there is no implication of sexual misconduct or impropriety. Moreover, the Examiner argues, the phrase "hooked up" is not capable of defamatory meaning because it just means that Mark Kulkis and plaintiff met on a social basis. Finally, the plain meaning of the statement that plaintiff "uses her position" to meet the "right people" is that plaintiff is a CNN producer, who, by definition, must use her position to meet the right people, i.e. those in a position to supply her with information for interviews and ...


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