United States District Court, N.D. West Virginia
JOHN K. SPEARS, Plaintiff,
CABLE NEWS NETWORK, CNN, Defendant.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [ECF NO. 25], OVERRULING PLAINTIFF'S
OBJECTIONS [ECF NO. 26], GRANTING MOTION TO DISMISS [ECF NO.
15], AND DENYING AS MOOT MOTION TO EXPEDITE RULING [ECF NO.
S. KLEEH UNITED STATES DISTRICT JUDGE
before the Court is a Report and Recommendation
(“R&R”) by the Honorable Michael J. Aloi,
United States Magistrate Judge. In the R&R, Judge Aloi
recommends that the Court grant the Defendant's Motion to
Dismiss, deny as moot the Plaintiff's Motion to Expedite
Ruling, and dismiss the Plaintiff's Complaint. For the
reasons discussed below, the Court adopts the R&R.
Plaintiff, John K. Spears (“Plaintiff”), brought
this action on August 20, 2018, against the Defendant, Cable
News Network, CNN (“Defendant”), alleging eleven
(11) causes of action: (1) Slander; (2) False Light; (3)
Intrusion; (4) Misappropriation/Right of Publicity; (5)
Appropriation of Name and Likeness; (6) Publication of
Private Facts; (7) Intentional Infliction of Emotional
Distress; (8) Negligent Infliction of Emotional Distress; (9)
Conspiracy; (10) Injurious Falsehoods; and (11) Interference
with Contract/Prospective Economic Advantage. ECF No. 1.
accuses Defendant of “creat[ing] a news segment
idolizing the plaintiff” over a span of
“numerous years.” Id. at 1. He claims
that his privacy rights have been violated via “phone
tapping, internet activity monitoring, and watching
(monitoring) his activities in public.” Id. at
2. He believes that the government and “other
individuals, ” including Defendant, have participated
in the monitoring. Id. Plaintiff cites his
“lack of ability to live in a certain level of solitude
which creates many issues.” Id. at 3. He
writes that his “claim is centered on the fact that
[Defendant] collected and disbursed private, sensitive
information.” Id. at 5. Plaintiff seeks
general, special, and statutory damages, arguing that he has
suffered “loss of income, physical manifestations of
emotional distress and extreme emotional distress.”
Id. at 6. He alleges that he “may never fully
regain his image and reputation” and seeks damages in
excess of $1, 400, 000.00. Id.
August 21, 2018, the Honorable Irene M. Keeley, United States
District Judge, referred this action to Judge Aloi. Defendant
moved to dismiss the action on September 28, 2018. ECF No.
15. The motion has been fully briefed. On December 1, 2018,
the case was transferred to the Honorable Thomas S. Kleeh,
United States District Judge. Judge Aloi issued an R&R on
January 30, 2019. ECF No. 25. Plaintiff then filed objections
to the R&R, and Defendant filed a response to the
STANDARD OF REVIEW
reviewing a magistrate judge's R&R, the Court must
review de novo only the portions to which an
objection has been timely made. 28 U.S.C. §
636(b)(1)(C). Otherwise, “the Court may adopt, without
explanation, any of the magistrate judge's
recommendations to which the [parties do] not object.”
Dellarcirprete v. Gutierrez, 479 F.Supp.2d 600,
603-04 (N.D. W.Va. 2007) (citing Camby v. Davis, 718
F.2d 198, 199 (4th Cir. 1983)). Courts will uphold portions
of a recommendation to which no objection has been made
unless they are clearly erroneous. See Diamond v.
Colonial Life & Accident Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005).
the R&R stated that parties had 14 days to object after
being served with the R&R. ECF No. 25 at 22. Plaintiff
filed his objections on February 13, 2019. ECF No. 26. In his
objections, Plaintiff generally argues that his Complaint is,
in fact, sufficiently pled, especially under the liberal
construction afforded to pro se plaintiffs.
Accordingly, the Court will conduct a de novo review
of the entire R&R. Plaintiff's Complaint will be
liberally construed because he is proceeding pro se.
See Estelle v. Gamble, 429 U.S. 97 (1976).
12(b)(6) of the Federal Rules of Civil Procedure allows a
defendant to move for dismissal upon the ground that a
complaint does not “state a claim upon which relief can
be granted.” In ruling on a motion to dismiss, a court
“must accept as true all of the factual allegations
contained in the complaint.” Anderson v. Sara Lee
Corp., 508 F.3d 181, 188 (4th Cir. 2007) (quoting
Erickson v. Pardus, 551 U.S. 89, 94 (2007)). A court
is “not bound to accept as true a legal conclusion
couched as a factual allegation.” Papasan v.
Allain, 478 U.S. 265, 286 (1986).
should dismiss a complaint if it does not contain
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Plausibility exists
“when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). A motion to dismiss
“does not resolve contests surrounding the facts, the
merits of a claim, or the applicability of defenses.”
Republican Party of N.C. v. Martin, 980 F.2d 943,
952 (4th Cir. 1992). “[T]he Court may consider
documents attached to the complaint, as well as those
attached to the motion to dismiss, ‘so long as they are
integral to the complaint and authentic.'”
Richardson v. Williams, No. 3:14-CV-129, 2015 WL
3937004, at *3 (N.D. W.Va. June 26, 2015) (quoting
Sec'y of State for Defence v. Trimble Navigation
Ltd., 484 F.3d 700, 705 (4th Cir. 2007)),
aff'd, 627 Fed.Appx. 279 (4th Cir. 2016).
motion challenges the substance of each claim Plaintiff has
asserted. The Court will examine in turn the sufficiency of
each claim presented in Plaintiff's Complaint. Because
the Court is proceeding pursuant to its diversity
jurisdiction, it will apply West Virginia law to the
substantive claims. See Volvo Constr. Equip. N. Am., Inc.
v. CLM Equip. Co., Inc., 386 F.3d 581, 599 (4th Cir.
2004) (citing Erie R. Co. v. Tompkins, 304 U.S. 64,
Virginia, slander is “defamation through oral
means” and requires a showing of the following
elements: “(1) defamatory statements; (2) a
nonprivileged communication to a third party; (3) falsity;
(4) reference to the plaintiff; (5) at least negligence on
the part of the publisher; and (6) resulting injury.”
Butts v. Royal Vendors, Inc., 504 S.E.2d 911, 916 (
W.Va. 1998); Syl. Pt. 1, Crump v. Beckley Newspapers,
Inc., 320 S.E.2d 70 ( ...