The opinion of the court was delivered by: Richard W. Roberts United States District Judge
Plaintiff Yorie Von Kahl brings this libel action against defendant Bureau of National Affairs, Inc. ("BNA") alleging that BNA defamed him in summaries published about a petition he filed following his criminal prosecution. The parties have cross-moved for summary judgment. Because BNA's statements were not privileged and genuine material factual issues remain for jury resolution, both motions will be denied.
In 1983, plaintiff was with a group of people that included his father for whom an arrest warrant was outstanding. United States Marshals attempted to arrest the father. A shootout started and two marshals were killed. Plaintiff was indicted under 18 U.S.C. §§ 1111 and 1114 in each of two counts for first degree murder and killing a United States marshal in the line of duty,*fn1 and in other counts for assaulting United States marshals and other law enforcement officers, conspiracy to assault, and harboring and concealing a fugitive. The jury acquitted plaintiff of both counts of first degree murder but convicted him of the lesser offense of second degree murder included in both counts, and of other offenses. See United States v. Faul, 748 F.2d 1204 (8th Cir. 1984); United States v. Kahl, No. A3-96-55, 2003 WL 21715352, at *1 (D.N.D. July 14, 2003); Mem. of P. & A. in Supp. of Def. The Bureau of National Affairs, Inc.'s Mot. to Dismiss or for Summ. J. ("BNA Mem."), Ex. A (Petition for a Writ of Mandamus to District Judge Ralph Erickson, In re Kahl, No. 04-1717 (U.S. June 17, 2005)) ("mandamus petition") at 3-4.*fn2 On July 17, 2005, plaintiff's counsel filed in the Supreme Court of the United States a petition for a writ of mandamus, which challenged the sentencing court's jurisdiction as well as the application of 18 U.S.C. §§ 1111 and 1114. BNA Mem. at 1-2. The mandamus petition was denied. In re Kahl, 546 U.S. 809 (2005).
BNA publishes the Criminal Law Reporter ("CLR"), a section of which summarizes cases filed before the Supreme Court. On August 17, 2005, BNA published in the CLR the following portion of a summary concerning plaintiff's mandamus petition:
04-1717 In re Kahl Homicide -- Murder of U.S. marshals -- Jury instructions -- Sentencing Ruling below (D. N.D., 6/24/83): Petitioner, who showed no hint of contrition and made statements to press that he believed that murders of U.S. marshals in course of their duties were justified by religious and philosophical beliefs, is committed to custody of the U.S. Attorney General for imprisonment for life based on his convictions on two counts of violating 18 U.S.C. §§ 1111, 1114, and 2, terms to run concurrently; for 10-year term of imprisonment on each of four counts on which he was convicted of violating 18 U.S.C. §§ 111, 1114, and 2, which terms will run concurrently but consecutively to life term; to five-year term of imprisonment for violating 18 U.S.C. §§ 1071 and 2, term to run consecutively to 10-year term and life term; and to five-year term of imprisonment on his conviction for violating 18 U.S.C. § 371, term to run concurrently to five-year, 10-year, and life terms.
Compl., Ex. 1 (CLR summary for Docket No. 04-1717, In re Kahl). The next paragraph of the summary sets forth the legal questions presented in the mandamus petition. Id. Plaintiff alleges that he "expressly . . . denied any murder of U.S. Marshals in [the] course of their duties as reflected in the jury acquittals expressly finding [p]laintiff 'Not Guilty' . . . and was seeking to compel enforcement of the jury's acquittals" through the mandamus petition. Compl. ¶ 9. According to plaintiff, the first sentence of the summary "contain[ed] numerous false facts all of which contextually were clearly libelous per se." Id. ¶ 8.
On July 3, 2007, plaintiff sent a letter to Paul N. Wojcik, BNA's President, "identifying the false, falsely attributed and defamatory statements" in the published summary and "informing [him] of injuries caused to [p]laintiff thereby, and requesting a retraction and public apology with an explanation to include the true facts[.]" Id. ¶ 12. Plaintiff also sought "compensat[ion] . . . for injuries caused by such publication." Id. ¶ 13.
On July 18, 2007, BNA published "a purported '[c]clarification,'" id. ¶ 14 (brackets in original), which stated:
In a Summaries of Recently Filed Cases entry that ran at 77 CrL 2127, concerning U.S. Supreme Court petition No. 04-1717, the summary of the sentencing judge's ruling should have begun: "Petitioner who was said to have believed that murders were justified, . . . ."
Id., Ex. 2 (Clarification) (emphasis in original).
Plaintiff alleges that BNA published libelous statements that he: (1) "showed no hint of contrition;" (2) "made statements to press that he believed that murders of U.S. marshals in the course of their duties were justified" on the basis of "religious and philosophical beliefs;" and (3) is incarcerated "based on his convictions on two counts of violating 18 U.S.C. §§ 1111, 1114, and 2." Compl. ¶ 11. He further alleges that, because the publications made plaintiff "appear so odious and dangerous," id. ¶ 26(d), and otherwise called into question his character, reputation and credibility, see id. ¶ 26(b), his "then-pending petition for mandamus . . . was arbitrarily denied after publication by . . . BNA . . . of the libelous statement(s)[.]" Id. ¶ 26(e). Moreover, plaintiff contends that the purported clarification made him appear more odious by falsely representing the original statement "to be the product of an official judicial adjudication." Id. ¶ 43. Plaintiff demands compensatory, special and punitive damages, plus costs of this litigation. Id. ¶¶ 48-52.
BNA has moved to dismiss the complaint or for summary judgment, arguing that its statements are protected by the fair reporting privilege.*fn3 Plaintiff opposes and has cross-moved ...